Ulrich v. Colvin

Filing 33

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Shirley P. Mensah on 7/29/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

VERNON D. ULRICH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 2:13CV45 SPM

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner’s final decision denying Vernon D. Ulrich’s
application for disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq.; and application for supplemental security income
under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters are pending
before the undersigned United States Magistrate Judge, with consent of the parties,
pursuant to 28 U.S.C. § 636(c). Because the Commissioner’s final decision is
supported by substantial evidence on the record as a whole, it is affirmed.
I.

PROCEDURAL HISTORY
Plaintiff Vernon D. Ulrich applied for disability insurance benefits (DIB)

and supplemental security income (SSI) on January 28, 2011, claiming that he

became disabled on September 19, 2009, because of degenerative disc disease,
chronic severe low back pain, depression, and arthritis in the wrists. (Tr. 168-69,
170-76, 204.)1 On February 23, 2011, the Social Security Administration denied
plaintiff’s claims for benefits. (Tr. 103, 104, 109-15.) Upon plaintiff’s request, a
hearing was held before an ALJ on May 10, 2012, at which plaintiff and a
vocational expert testified. (Tr. 27-55.) On May 29, 2012, the ALJ issued a
decision denying plaintiff’s claims for benefits, finding plaintiff able to perform
other work as it exists in significant numbers in the national economy. (Tr. 10-22.)
On April 3, 2013, upon review of additional evidence, the Appeals Council denied
plaintiff’s request for review of the ALJ's decision. (Tr. 1-5.) The ALJ's
determination thus stands as the final decision of the Commissioner. 42 U.S.C. §
405(g).
In the instant action for judicial review, plaintiff claims that the ALJ’s
decision is not supported by substantial evidence on the record as a whole, arguing
that the ALJ improperly discounted the medical opinion rendered by the consulting
physician, Dr. Russell. Plaintiff requests that the matter be reversed and remanded
to the Commissioner for an award of benefits or for further proceedings.
Because the ALJ committed no legal error and substantial evidence on the
1

Plaintiff previously filed an application for DIB, which an administrative law judge (ALJ)
denied on September 18, 2009, after a hearing. The Appeals Council denied plaintiff’s request
for review on November 2, 2010. (Tr. 78-90, 91-95.) In the instant case, the ALJ gave this prior
determination res judicata effect (Tr. 18), which the plaintiff does not challenge.
-2-

record as a whole supports his decision, the Commissioner’s final decision that
plaintiff was not disabled is affirmed.2
II.

RELEVANT TESTIMONIAL EVIDENCE BEFORE THE ALJ
A.

PLAINTIFF’S TESTIMONY

At the administrative hearing on May 10, 2012, plaintiff testified in response
to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was forty-six years of age. Plaintiff
stands five-feet, ten inches tall and weighs 139 pounds. Plaintiff is married and
has one adult-aged child. Plaintiff did not graduate from high school but obtained
his GED and attended community college for three years. Plaintiff served in the
military from 1984 to 1987. (Tr. 32-34.) Plaintiff receives food stamps and health
benefits from the Veterans Administration (VA). (Tr. 35.)
Plaintiff’s Work History Report shows that plaintiff worked as a production
machine operator from July 1999 to July 2003. From August 2003 to December
2006, plaintiff worked in construction as a subcontractor. From December 2006 to
January 2007, plaintiff worked as a return specialist for a mail order company.
From January to August 2007, plaintiff worked in die services for a light metal
2

The undersigned has reviewed the entirety of the administrative record in determining whether
the Commissioner’s adverse decision is supported by substantial evidence. Inasmuch as plaintiff
challenges the decision only as it relates to Dr. Russell’s opinion regarding his back impairment
and not as it relates to any other impairment, the recitation of specific evidence in this
Memorandum and Order is limited to only that evidence relating to the issue raised by plaintiff
on this appeal.
-3-

manufacturer. (Tr. 214.)
Plaintiff testified that he has low back pain that worsens with standing or
sitting for extended periods of time or lifting anything over ten pounds. Plaintiff
testified that he tries to relieve the pain by taking hot showers and by lying down in
his recliner with a lumbar support pillow. Plaintiff testified that he receives his
medical care through the VA. Plaintiff testified that he previously underwent a
micro discectomy and laminectomy that provided temporary relief. (Tr. 37-38.)
As to his exertional abilities, plaintiff testified that he can stand in one
position for about fifteen minutes, after which he experiences back spasms and
weakness in his legs. Plaintiff testified that he can walk one block. Plaintiff
testified that lifting items weighing ten pounds more than once causes sharp pain in
his low back. Plaintiff testified that he can sit for about half an hour before
experiencing muscle spasms and a burning sensation in his right hip and down his
legs. (Tr. 40-41.) Plaintiff testified that he can bend but that it is a slow process
because he easily loses his balance. (Tr. 41-42.)
As to his daily activities, plaintiff testified that he gets up, gets dressed,
makes a simple breakfast, sits in his recliner for one to two hours, moves around
and works on the computer for ten minutes, returns to his recliner, eats a simple
lunch, and then visits his father for about half an hour. (Tr. 40.) Plaintiff testified
that he drives to his father’s house, which is about one mile from his home. (Tr.
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33, 40.) Plaintiff testified that he also reads a lot. (Tr. 48.) Plaintiff testified that
he prepares cereal and sandwiches, but that his wife does most of the major
cooking. Plaintiff testified that he may help with the dishes once a day. Plaintiff
testified that his wife does the yard work. (Tr. 40.) Plaintiff testified that he goes
grocery shopping with his wife once a month but that she carries the grocery bags.
Plaintiff testified that he has no relatives other than his father and that he does not
have many friends in town. (Tr. 49.)
B.

TESTIMONY OF VOCATIONAL EXPERT

Julie Speck, a vocational expert, testified at the hearing in response to
questions posed by the ALJ and counsel.
Ms. Speck classified plaintiff’s past work as a die worker, extrusion
operator, and automobile mechanic as medium to heavy and skilled; as a
construction worker as heavy and semi-skilled; as a machine operator as medium
and skilled; as a salvage worker as medium to heavy and semi-skilled; and as a
punch operator as light to medium and skilled. (Tr. 52-53.)
The ALJ asked Ms. Speck to assume an individual of plaintiff’s age,
education, and past work experience and to further assume the person to be limited
to sedentary work in that he could lift ten pounds occasionally, less than ten
pounds frequently, stand or walk for two hours, and sit for up to six hours. The
ALJ asked Ms. Speck to further assume that the individual can occasionally climb
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ramps or stairs; never climb ladders, ropes, or scaffolds; and occasionally stoop,
kneel, crouch, crawl, and balance. Ms. Speck testified that such a person could not
perform any of plaintiff’s past work but could perform other work such as die
equipment operator, of which 500 such jobs exist in the State of Missouri and
28,000 nationwide; brush polisher, of which 500 such jobs exist in the State of
Missouri and 28,000 nationwide; and component tester, of which 600 such jobs
exist in the State of Missouri and 30,000 nationwide. Ms. Speck further testified
that if such a person needed to lie down in a recliner for one to two hours twice a
day, he could not perform any job. (Tr. 53-54.)
III.

RELEVANT MEDICAL EVIDENCE BEFORE THE ALJ
An x-ray taken of plaintiff’s lumbosacral spine on August 19, 2007, showed

marked narrowing of the L5-S1 disc space. (Tr. 385.) An MRI of the lumbar
spine dated September 26, 2007, showed minimal posterior disc bulge at L3-L4,
moderate posterior disc bulge at L4-L5, mild asymmetric disc bulge at L5-S1, and
laminectomies on the left at L5. (Tr. 384.) Plaintiff was diagnosed with
degenerative disc disease and post-surgical changes in the lumbar spine. (Tr. 375.)
Plaintiff participated in physical therapy on January 10, 2008, at the
Veterans Affairs Medical Center (VAMC) in relation to his complaints of low to
mid back pain with continued pain in his right gluteus and hip. Plaintiff reported
wearing a TENS unit in the morning until about noon. Plaintiff reported doing
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exercises a couple of times every day. Plaintiff reported his current pain to be at a
level five on a scale of one to ten. Physical therapist Erin B. Miller noted plaintiff
to have had laminectomies performed in 1994 and 2003. Plaintiff was noted to
walk with slow, stiff movements and to be very guarded. Ms. Miller noted there to
be no significant changes since plaintiff began treatment in October but that he
continued to smoke, which further deteriorated his discs. Ms. Miller recommended
that plaintiff undergo consultation with the pain clinic and with neurosurgery. (Tr.
292-94.)
On February 25, 2008, an epidural steroid injection was administered to the
iliolumbar ligament (Tr. 290-92), which plaintiff subsequently reported provided
little change to his pain (Tr. 288).
Plaintiff visited the neurosurgery clinic on February 29, 2008. It was noted
that plaintiff underwent a lumbar discectomy at L3-4 in 1995 and again in 2005.
Upon physical examination and review of the September 2007 MRI results,
plaintiff was diagnosed with lumbar spondylosis. Further diagnostic testing was
ordered. (Tr. 296-300.)
On March 6, 2008, plaintiff underwent a CT scan of the lumbar spine and a
L4-5 diskogram, which showed small to moderate disc protrusion/herniation at the
site of a previous micro discectomy at the L4-5 level; L5-S1 left laminectomy and
left lateral recess scar formation from a previous discectomy; and L5-S1 moderate
-7-

left foraminal stenosis secondary to degenerative disease. (Tr. 301-04.)
Plaintiff returned to the neurosurgery clinic on May 8, 2008, and was
advised that he may benefit from an L4-5 posterior lumbar interbody fusion.
Plaintiff decided to continue with conservative treatment. (Tr. 313-14.)
Between March and September 2008, plaintiff visited the VAMC on four
occasions for follow up appointments. Throughout this period, plaintiff was noted
to ambulate without difficulty, to have limited range of motion about his lower
back, and to have tenderness to palpation along the lower back. Sitting and supine
straight leg raising was negative. Plaintiff was prescribed Gabapentin,3 Tramadol,4
and Skelaxin5 during this period and was instructed to apply heat and ice to the
affected area, walk, and perform physical therapy exercises. (Tr. 281-90.)
Plaintiff visited Dr. Jerome J. Mank on October 16, 2008, at the VAMC who
noted plaintiff’s history of chronic low back pain. Plaintiff’s current medications
were noted to include Gabapentin and Tramadol. During the examination, Dr.
Mank observed plaintiff to be stooped and stiff with his gait, but Dr. Mank noted
3

Gabapentin is an anticonvulsant used to control certain types of seizures and to relieve the pain
of post-herpetic neuralgia. Medline Plus (last revised July 15, 2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a694007.html>.
4

Tramadol is a narcotic analgesic used to relieve moderate to moderately severe pain. Medline
Plus (last revised Oct. 15, 2013)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a695011.html>.
5

Skelaxin is a muscle relaxant used to relax muscles and relieve pain and discomfort caused by
muscle injuries. Medline Plus (last reviewed Sept. 1, 2010)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682010.html>.
-8-

plaintiff to be upright and walking fluidly when going to his car. Straight leg
raising was negative. Plaintiff had good strength and intact sensation in his lower
extremities. Dr. Mank noted plaintiff to be reluctant to forward flex or extend
back, and plaintiff was hyperesthetic over a wide area of the lumbar back. Dr.
Mank diagnosed plaintiff with low back pain, L4-5 concordant disc protrusion/
herniation, status post L5-S1 hemilaminectomy, and left-sided stenosis. Plaintiff
continued to not be interested in surgery. Plaintiff was instructed to return as
scheduled or as needed. (Tr. 407-09.)
Plaintiff visited Nurse Practitioner (NP) Brandy Lynn Worley at the VAMC
on April 8, 2009, and reported having a flare up of back pain with an increase in
muscle spasms. NP Worley noted plaintiff’s current medications to be Gabapentin
and a thyroid medication. Physical examination showed plaintiff to have limited
range of motion about the low back, a stooped posture, a limp on the right, and
tenderness to palpation along the spine. NP Worley noted plaintiff to jump when
his back was touched. NP Worley diagnosed plaintiff with low back pain and
recommended that plaintiff take NSAIDs as needed and to alternate applying heat
and ice to the affected area. NP Worley also instructed plaintiff to perform
physical therapy exercises and to walk in order to improve his condition. Plaintiff
was also instructed to continue with his TENS unit. Plaintiff reported wanting to
avoid additional surgery. Flexeril was prescribed for muscle spasms. Plaintiff was
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instructed to return in twelve months or as needed. (Tr. 404-07.)
Plaintiff returned to NP Worley on April 14, 2010, who noted plaintiff not to
be taking any medication. Plaintiff reported that he had been participating in
Narcotics Anonymous for the past fourteen months for drug abuse. Plaintiff
reported continued back pain. Physical examination showed plaintiff to have
limited range of motion about the low back, a stooped posture, a limp on the right,
and tenderness to palpation along the spine. NP Worley noted plaintiff to jump
when his back was touched. Deep tendon patellar reflexes were noted to be
hyperactive bilaterally. NP Worley diagnosed plaintiff with low back pain and
recommended that plaintiff take NSAIDs as needed and to alternate applying heat
and ice to the affected area. NP Worley also instructed plaintiff to perform
physical therapy exercises and to walk in order to improve his condition. Plaintiff
was also instructed to continue with his TENS unit. It was noted that plaintiff was
taking Excedrin back and body. No narcotics were prescribed given plaintiff’s
history of abuse. Plaintiff was instructed to return in ten to twelve months. (Tr.
402-04.)
Plaintiff visited NP Worley on July 6, 2010, who noted plaintiff not to be
taking any medication. Plaintiff complained of low back pain with shooting pain
down his legs, bilaterally, and cramps in his calves. NP Worley noted plaintiff to
have limited range of motion about the lumbar spine with exaggerated response
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with palpation. Plaintiff reported having no feeling about the L3-4, and tenderness
was noted about the lower lumbar spine. Plaintiff ambulated slowly with a stooped
posture. NP Worley noted plaintiff to be unable to lie flat on his back with his legs
extended. NP Worley diagnosed plaintiff with low back pain and recommended
that plaintiff take NSAIDs as needed and to alternate applying heat and ice to the
affected area. NP Worley also instructed plaintiff to perform physical therapy
exercises and to walk in order to improve his condition. Plaintiff was also
instructed to continue with his TENS unit. It was recommended that plaintiff
resume Gabapentin to take at bedtime to help with radicular symptoms and
cramping. No narcotics were prescribed given plaintiff’s history of abuse. An xray of the lumbar spine was ordered. Gabapentin and Meloxicam6 were prescribed.
(Tr. 391-95.)
Plaintiff underwent a pain consultation at the VAMC on August 5, 2010.
Dr. Osvaldo Acosta noted plaintiff to be taking Gabapentin. Physical examination
showed plaintiff to have full range of motion about the upper and lower extremities
and to have forward flexion to eighty degrees. Range of motion about the lumbar
spine was normal. Straight leg raising was negative. Dr. Acosta noted the
sacroiliac joint exam to be abnormal with standing, sitting, and lying down. Mild
6

Meloxicam (Mobic) is an NSAID used to relieve pain, tenderness, swelling, and stiffness
caused by arthritis conditions. Medline Plus (last reviewed Sept. 1, 2010)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a601242.html>.
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upper lumbar and lower thoracic spine somatic dysfunction was noted. Dr. Acosta
diagnosed plaintiff with bilateral SI joint somatic dysfunction with mild pelvic,
lumbar, and lower thoracic spine somatic dysfunction. Unbalanced muscles were
noted about the low back. Adjustments to the ribs, lower back, and pelvis were
performed. Plaintiff was instructed to advance to normal activities slowly and to
call if he was out of alignment again. (Tr. 325-29.)
During this period, plaintiff received mental health treatment at the VAMC.
On October 26, 2010, plaintiff reported to his mental health provider that he was
teaching GED classes two mornings a week. On November 22, 2010, plaintiff
reported that he walked his dogs whenever he felt stressed. (Tr. 387-88.)
Plaintiff underwent a consultative physical examination on January 3, 2011,
at Columbia Orthopaedic Group. (Tr. 555-60.) Plaintiff reported having had back
pain since he was eleven years old and that he underwent various chiropractic
treatments throughout his life. Plaintiff reported that the pain became more severe
in 1994 at which time he underwent a discectomy. Plaintiff reported that he was
thereafter able to continue to work in construction until 2005. Plaintiff reported
that he then experienced acute low back pain upon missing a lower rung on a
ladder, after which he underwent additional surgery. Plaintiff reported developing
pain again in 2007 after sustaining another fall and that he thereafter participated in
physical therapy for six months. Plaintiff reported his pain to currently be in his
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low back, radiating to both hips and down the left leg. Plaintiff reported his pain to
worsen with standing, sitting for long periods, bending, and engaging in any
physical activity involving his lower back. Plaintiff also reported experiencing
some numbness in his left thigh. Dr. Garth R. Russell observed plaintiff to sit
normally but to shift side to side, and to rise from a seated position with difficulty.
Dr. Russell also observed plaintiff to walk with somewhat of an unsteady gait on
the left. Physical examination showed chronic muscle spasm in the paraspinous
muscles extending into the quadratus lumborum muscles. Tenderness was noted
over the lumbosacral area and over both sacroiliac joints, more severe on the left.
Limited range of motion was noted with forward flexion in the lumbar area.
Straight leg raising was tight bilaterally but not truly positive. X-rays showed
pelvic tilt to the left; moderate degenerative changes within the sacroiliac joints
bilaterally, more severe on the right; mild to moderate degenerative changes within
the hips; settling of the L4-5 disc space with degenerative changes; settling of the
L5-S1 and L3-4; and a moderate amount of facet joint change within the L3-4, L45, and L5-S1 joints. Dr. Russell reviewed medical records dating from October
2004. Upon conclusion of the evaluation, Dr. Russell diagnosed plaintiff with
degenerative disc disease, chronic, severe, with laminectomy L4-5 left, L5-S1; and
secondary degenerative disc disease, severe. (Tr. 555-59.) Dr. Russell
summarized his findings as follows:
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It is my medical opinion that this patient does have
degenerative disc disease which has required two previous surgeries
to his back. He did respond quite well following the first surgery and
returned to work doing heavy construction work. The pain recurred
requiring a second surgery. The patient is a candidate for arthrodesis
from the L3 area down to the S1 area. However, he does smoke and
therefore the surgeons are hesitant to perform the procedure. He does
have significant reactive depression requiring supportive therapy.
Based upon the above, it is my medical opinion that this patient
would be unable to pursue any gainful employment for which he is
qualified. He does require at the present time consumption of narcotic
medication to maintain his pain control. He is also unable to pursue
any physical activity while standing on his feet other than for [a] 3045 minute period of time. In addition, he will require episodes of rest
during the day to alleviate his discomfort.
...
In summary, it is my opinion that he does have a chronic low
back pain syndrome for which he would not be able to pursue gainful
employment.
(Tr. 559-60.)
On February 23, 2011, Dr. Robert Cottone, a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form
(PRTF) in which he opined that plaintiff’s mental impairment was not severe. (Tr.
613-24.)

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IV.

MEDICAL RECORDS SUBMITTED TO THE APPEALS COUNCIL7
Plaintiff visited his mental health provider on July 8, 2011, who noted

plaintiff to be tired. Plaintiff reported having recently traveled 950 miles to pick
up his wife’s grandson and bring him to live with them. It was noted that plaintiff
continued to teach GED students and seemed to keep busy. (Tr. 632-33.)
X-rays taken of the lumbosacral spine on September 28, 2011, showed mild
loss of normal lumbar lordosis and minimal disc space narrowing and anterior
osteophytosis. (Tr. 625.)
Plaintiff visited NP Worley on September 30, 2011, and requested
medication for his back pain. Plaintiff reported having increased back spasms and
that his pain was at a level five. Plaintiff reported that Excedrin back and body no
longer provided good relief. Plaintiff also reported a recent onset of intermittent
numbness in the left leg. Plaintiff reported that he was not interested in surgical
intervention. Plaintiff reported having had epidural steroid injections in the past,
which were painful and did not provide relief. Physical examination showed
plaintiff to have difficulty getting up from the examination table and to have very
limited flexion of the lumbar spine. Plaintiff refused to try extension. Plaintiff
7

In making its determination to deny review of the ALJ’s decision, the Appeals Council
considered additional evidence which was not before the ALJ. The Court must consider this
additional evidence 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).
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was able to heel/toe walk without difficulty, and straight leg raising was negative.
Tenderness was noted to palpation over the bilateral SI joints. No tenderness was
noted along the spine. Very weak muscle spasms were noted in the back. NP
Worley noted plaintiff to have exaggerated pain responses. Plaintiff was
diagnosed with chronic low back pain, degenerative disc disease, and history of
discectomy. NP Worley noted plaintiff’s medical history and recommended that
plaintiff alternate applying heat and ice to the affected area and to use a TENS unit.
Mobic was prescribed. Physical therapy was recommended. NP Worley also
referred plaintiff to pain management, noting that he had done well with
adjustments in the past. (Tr. 627-31.)
Plaintiff also visited his mental health provider on September 30, 2011, and
reported being excited about teaching GED classes and the possibility of teaching
other adult education classes. Plaintiff reported that he was considering getting a
teaching degree. (Tr. 631.)
On April 17, 2012, plaintiff appeared at the VAMC for follow up of his
mental health treatment. Plaintiff reported that he was planning a long trip out
West and was going to look at some land for building a house. Plaintiff also
reported that his 101-year-old father had just been approved for an upcoming
Honor Flight and that he was hoping to be able to accompany him on the trip. (Tr.
626.)
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V.

STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for DIB and SSI under the Social Security Act, plaintiff must

prove that he is disabled. 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.
1992). The Social Security Act defines disability as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be declared disabled
"only if his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding
whether the claimant is engaged in substantial gainful activity. If the claimant is
working, disability benefits are denied. Next, the Commissioner decides whether
the claimant has a “severe” impairment or combination of impairments, meaning
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that which significantly limits his ability to do basic work activities. If the
claimant's impairment(s) is not severe, then he is not disabled. The Commissioner
then determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
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 disability benefits.
VI.

THE ALJ’S DECISION
The ALJ in this case applied the foregoing five-step analysis and found,

first, that plaintiff met the insured status requirements of the Social Security Act
through December 31, 2012. The ALJ next found plaintiff not to have engaged in
substantial gainful activity since September 19, 2009, the alleged onset date of
disability. The ALJ found plaintiff’s degenerative disc disease and status post
discectomy to be severe impairments, but that such impairments, either singly or in
combination, did not meet or medically equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. The ALJ found plaintiff to have the RFC to

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perform sedentary work,8 except that he can only occasionally climb ramps and
stairs; never climb ladders, ropes, or scaffolds; and can only occasionally stoop,
kneel, crouch, crawl, or balance. The ALJ determined plaintiff unable to perform
any past relevant work. Considering plaintiff’s age, education, work experience,
and RFC, the ALJ found that vocational expert testimony supported a conclusion
that plaintiff could perform other work as it exists in significant numbers in the
national economy, and specifically, die equipment operator, brush polisher, and
components tester. The ALJ thus found plaintiff not to be under a disability from
September 19, 2009, through the date of the decision. (Tr. 13-22.)
VII. DISCUSSION
A. STANDARD FOR JUDICIAL REVIEW
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. See 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); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Ford
v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)). “Substantial evidence ‘is less than a
preponderance, but enough that a reasonable mind might accept as adequate to
8

Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
- 19 -

support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012)
(quoting Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009)). In determining
whether substantial evidence supports the Commissioner’s decision, the court
considers both evidence that supports that decision and evidence that detracts from
that decision. Id. However, the court “‘do[es] not reweigh the evidence presented
to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the credibility of
testimony, as long as those determinations are supported by good reasons and
substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890,
894 (8th Cir. 2006)). “‘If, after reviewing the record, the court finds it is possible
to draw two inconsistent positions from the evidence and one of those positions
represents the ALJ’s findings, the court must affirm the ALJ’s decision.’” Partee
v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005)).
Plaintiff claims here that the ALJ erred by according little weight to the
opinion of Dr. Russell because it was consistent with the other medical evidence of
record and because Dr. Russell was the only physician to render an opinion
regarding plaintiff’s physical functional abilities. For the following reasons, the
ALJ did not err in his consideration of Dr. Russell’s opinion.

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B. RELATIVE WEIGHT GIVEN TO CONSULTATIVE EXAMINER’S OPINION
In determining a claimant’s disability, the ALJ is required to consider the
medical opinion evidence of record together with the other relevant evidence. 20
C.F.R. §§ 404.1527(b), 416.927(b). Unless the opinion of a treating physician is
given controlling weight, the ALJ must explain in the decision the weight given to
every medical opinion of record, regardless of its source. See 20 C.F.R. §§
404.1527(c), (e)(2)(ii); 416.927(c), (e)(2)(ii). Ordinarily, the medical opinion of a
one-time examining physician does not alone constitute substantial evidence upon
which an ALJ may base his ultimate decision of disability. Cox v. Barnhart, 345
F.3d 606, 609-10 (8th Cir. 2003) (citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th
Cir. 1999)).
Here, as noted by the plaintiff and as acknowledged by the ALJ, the record
does not contain an opinion from a treating source in this case. The only opinion
evidence of record relating to plaintiff’s physical functioning is that rendered by
one-time consulting physician Dr. Russell. However, the mere absence of other
opinion evidence is not a sufficient basis to accord Dr. Russell’s opinion any
greater weight than it otherwise would be entitled. Instead, the ALJ must weigh
each opinion by considering the following factors: the examining and treatment
relationship between the claimant and the medical source, the length of the
treatment relationship and the frequency of examination, the nature and extent of
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the treatment relationship, whether the physician provides support for his findings,
whether other evidence in the record is consistent with the physician's findings, and
the physician's area of specialty. 20 C.F.R. §§ 404.1527(c)(1)-(5), 416.927(c)(1)(5).
In the instant case, the ALJ considered the factors set out above and properly
determined to accord Dr. Russell’s opinion little weight. First, the ALJ noted that
Dr. Russell performed a one-time examination at the request of plaintiff’s counsel
and not for the purpose of rendering treatment. See 20 C.F.R. §§ 404.1527(c)(1)(2), 416.927(c)(1)-(2). The ALJ further noted that Dr. Russell’s statement that
plaintiff required the use of narcotic pain medication to maintain pain control was
inconsistent with the medical evidence of record that showed plaintiff able to
manage his pain without the use of narcotics. See 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4). Indeed, the record shows plaintiff to have last taken narcotic pain
medication in October 2008. Plaintiff thereafter was instructed to take NSAIDs,
and the record shows plaintiff to have taken Excedrin. It was not until September
2011, that is, eight months after Dr. Russell’s examination, when plaintiff reported
to his treating medical care provider that Excedrin no longer provided satisfactory
relief. Notably, at that time, plaintiff continued to report his pain to be only at a
level five on a scale of one to ten. Cf. Moore v. Astrue, 572 F.3d 520, 524-25 (8th
Cir. 2009) (conservative treatment with over-the-counter medication and limited
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use of prescription medication inconsistent with disabling pain); Novotny v.
Chater, 72 F.3d 669, 671 (8th Cir. 1995) (although claimant rated pain at a level
ten, failure to seek regular or sustained treatment coupled with lack of prescription
pain medication inconsistent with disabling pain). Finally, the ALJ properly noted
that Dr. Russell’s opinion that plaintiff’s impairments would preclude him from
pursuing gainful employment was a matter reserved to the Commissioner. An ALJ
need not defer to a physician’s opinion that an applicant is “disabled” or “unable to
work” “because it invades the province of the Commissioner to make the ultimate
disability determination.” Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012)
(internal quotation marks and citation omitted); see also 20 C.F.R. §§
404.1527(d)(1), 416.927(d)(1).
Plaintiff argues that Dr. Russell’s opinion should be accorded significant
weight inasmuch as Dr. Russell is a spine specialist. While 20 C.F.R. §§
404.1527(c)(5), 416.927(c)(5) encourages the Commissioner to give greater
weight to the opinion of a specialist, this rule does not apply where the specialist’s
opinion is controverted by substantial evidence or is otherwise discredited. Prosch
v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000). As discussed supra, the ALJ
properly discredited Dr. Russell’s opinion for numerous well-supported reasons.
As such, the ALJ was not required to give the opinion special deference under §§
404.1527(c)(5), 416.927(c)(5).
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In sum, a review of the ALJ’s decision shows him to have evaluated all of
the evidence of record and to have provided good reasons for the weight he
accorded Dr. Russell’s opinion. Because substantial evidence on the record as
whole supports the ALJ’s determination as to the weight he accorded Dr. Russell’s
opinion, the Court will not disturb the determination.
According limited weight to the only opinion evidence of record does not
necessarily render the record devoid of substantial evidence upon which an ALJ
can base his decision. The limitation of opinion evidence does not undermine an
ALJ’s RFC determination where other medical evidence in the record supports the
finding. See Cox, 495 F.3d at 619-20; see also Zeiler v. Barnhart, 384 F.3d 932,
936 (8th Cir. 2004) (lack of opinion evidence not fatal to RFC determination where
ALJ properly considered available medical and testimonial evidence); Sampson v.
Apfel, 165 F.3d 616 (8th Cir. 1999) (although ALJ discounted the only opinion
evidence of record, a review of the entirety of the medical record provided
substantial evidence on the record as a whole to support ALJ’s decision). Here,
there was sufficient other medical evidence of record supporting the ALJ’s
decision that plaintiff had the RFC to perform sedentary work with additional
restrictions. Specifically, the ALJ noted diagnostic testing to show mild to
moderate degenerative disc disease and that treatment providers noted plaintiff to
be doing well with over-the-counter medication as supplemented by Gabapentin.
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See Steed v. Astrue, 524 F.3d 872, 875 (8th Cir. 2008) (diagnosis tempered by the
words “mild” or “minimal”); Moore, 572 F.3d at 524-25 (conservative treatment
with over-the-counter medication and limited use of prescription medication
inconsistent with disabling pain). The ALJ also noted that, despite plaintiff’s
display of stiffness and stooped posture during examinations, he nevertheless was
observed to walk upright and fluidly when walking to his car. Indeed, NP Worley
repeatedly noted plaintiff to display exaggerated responses during examinations.
Cf. Jones v. Callahan, 122 F.3d 1148, 1151 (8th Cir. 1997) (ALJ may consider
conservative course of treatment, limited medication, and treatment provider’s
observation of exaggeration of symptoms); Ballowe v. Harris, 650 F.2d 130, 133
(8th Cir. 1981) (claimant not prevented from performing sedentary work in
circumstances where he was found to exaggerate his pain). The ALJ also noted
that while some examinations showed limited range of motion, the August 2010
examination with a pain consultant showed normal range of motion about the back.
It is the duty of the Commissioner to resolve conflicts in the evidence, including
medical evidence. Renstrom, 680 F.3d at 1065; Spradling v. Chater, 126 F.3d
1072, 1075 (8th Cir. 1997); Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995).
In addition, the undersigned notes that while the ALJ accorded limited weight to
Dr. Russell’s opinion evidence, he did not entirely discount it. Indeed, the ALJ’s
RFC assessment limiting plaintiff to sedentary work, which is itself a significant
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limitation, demonstrates that the ALJ did give some credit to this opinion evidence.
See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005).
A review of the decision shows the ALJ to have thoroughly discussed
specific medical facts, nonmedical evidence, and the consistency of such evidence
when viewed in light of the record as a whole and to have assessed plaintiff’s RFC
based on the relevant, credible evidence of record. Accord SSR 96-8p, 1996 WL
374184, at *7 (Soc. Sec. Admin. July 2, 1996). Because some medical evidence
supports the ALJ’s determination that plaintiff could perform sedentary work with
additional restrictions, the ALJ’s RFC assessment must stand. See Steed, 524 F.3d
at 875-76.
Finally, plaintiff appears to argue that the ALJ’s determination to accord
significant weight to Dr. Cottone’s opinion was error inasmuch as Dr. Cottone did
not evaluate plaintiff’s physical impairments. Plaintiff’s argument is misplaced.
Dr. Cottone is a psychological consultant who completed a PRTF for disability
determinations and rendered an opinion that plaintiff had no severe mental
impairments. The ALJ relied on this opinion evidence only in relation to his
finding that plaintiff’s mental impairment was not severe. (Tr. 16-17.) A review
of the ALJ’s decision in its entirety shows that Dr. Cottone’s opinion played no
role in the ALJ’s determination regarding plaintiff’s physical ability to perform
work-related functions. Plaintiff’s claim otherwise fails.
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VIII. CONCLUSION
For the reasons set out above on the claims raised by plaintiff on this appeal,
the ALJ’s determination that plaintiff was not disabled from September 19, 2009,
through the date of the decision is supported by substantial evidence on the record
as a whole, and plaintiff’s claims of error should be denied. Inasmuch as there is
substantial evidence to support the Commissioner's decision, this Court may not
reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court could have
decided the case differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001);
see also Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
Therefore,
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
____________________________________
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

Dated this 29th day of July, 2014.

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