Wiese v. Colvin

Filing 29

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED, ADJUDGED and DECREED that the final decision of the Commissioner denying social security benefits be AFFIRMED. Judgment shall be entered accordingly.. Signed by Magistrate Judge Terry I. Adelman on 9/5/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JOSEPH C. WIESE,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

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No. 2:13CV0075 TIA

MEMORANDUM AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This cause is on appeal from an adverse ruling of the Social Security Administration.
The suit involves applications for Disability Insurance Benefits under Title II of the Social
Security Act and for Supplemental Security Income under Title XVI of the Act. Claimant has
filed a Brief in Support of his Complaint; the Commissioner has filed a Brief in Support of her
Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. §
636(c).
I.

Procedural History
On August 31, 2010, Claimant filed Applications for Supplemental Security Income

payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et. seq. (Tr. 20609) and for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr.
210-16)1 alleging disability since April 30, 20102 due to arthritis, degenerative disc disease,
1

"Tr." refers to the page of the administrative record filed by Defendant with its Answer.
(Docket No. 12/filed October 28, 2013).
2

At the hearing, Claimant though his attorney amended his alleged onset date of disability
from January 1, 2008, to April 30, 2010. (Tr. 32-34).

bipolar, depression, hip problems, fibromyalgia, and pinched nerves in his neck. (Tr. 94). The
applications were denied (Tr. 53-57), and Claimant subsequently requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 101-02). On September 7, 2011 a hearing was held
before an ALJ and on May 8, 2012, a supplemental hearing was held. (Tr. 30-53, 54-72).
Claimant testified and was represented by counsel. (Id.). Dr. John Pollard, the medical expert,
and Vocational Expert Gail Leonhardt also testified at the supplemental hearing. (Tr. 56-65, 6871, 195-96, 201-02). In a decision dated July 27, 2012, the ALJ found that Claimant had not
been under a disability as defined by the Social Security Act. (Tr. 8-24). After considering the
letter from Dr. John Small, the Appeals Council denied Claimant’s Request for Review on March
26, 2013. (Tr. 2-7). Thus, the ALJ’s decision is the final decision of the Commissioner.
II.

Evidence Before the ALJ
A. Hearing on September 7, 2011
At the hearing on September 7, 2011, Claimant testified in response to questions posed by

the ALJ and counsel. (Tr. 30-53). His date of birth is September 13, 1974. (Tr. 37). He lives in
an apartment through public assistance. (Tr. 49). He does not have a driver’s license, and his
parents take him shopping. (Tr. 50). Claimant lost his license due to his failure to pay child
support. (Tr. 51).
Claimant testified that Dr. John Collins of the Kirksville Complete Family Medicine treats
for his episodes of abscesses in his anal, scrotum, and groin areas. (Tr. 37). He explained that the
abscesses start with a lump and then the area around it turns red and feverish and a pocket of
infection forms and then comes to a head and starts to drain. (Tr. 38). Claimant testified that the
abscess occurs within a week time period unless the abscess is lanced open and drained. The
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open pocket underneath the skin created by the abscess reinfects and has to be reopened. (Tr.
38). He is treated with an antibiotic. (Tr. 40). When the abscess is located in his groin, scrotum,
or anal area, sitting increases the pain, and lying down in his underwear with a wash clothe helps
alleviate the pain. (Tr. 39). Claimant indicated that he may go a month without an abscess, but
then he has two in another month, and he has no way of projecting when he will have one. (Tr.
39). He testified the abscesses will be reoccurring. (Tr. 40). He was hospitalized once to drain
an abscess in June, 2010. (Tr. 41). The severe pain from the abscesses interferes with his sleep.
(Tr. 43). He takes hydrocodone to alleviate his pain and experiences no side effects from the
medication. (Tr. 43).
His problems with his cysts started in 1998 when Claimant had a pilonidal cyst. (Tr. 45).
Claimant acknowledged that he had worked with his cyst problem. (Tr. 45).
Claimant last worked at Four Quarters Construction doing house remodeling in
December, 2007. (Tr. 45). He stopped working due to his physical conditions including his back
and neck pain, fibromyalgia, arthritis, and degenerative disc disease. (Tr. 46). The cysts had
something to do with his no longer working, because he was missing a lot of work due to loss of
sleep. In 2007, Claimant testified that he had two to three cysts. (Tr. 46). He indicated that he
had shared his cyst problems with his friend, Sean Fratheim. (Tr. 47). The ALJ noted how
Claimant failed to list his cyst problem on his applications as a disabling condition preventing him
from working. (Tr. 47).3
3

As noted by the ALJ, Claimant failed to alleged the abscesses to be disabling impairments
in his applications. The fact that Claimant did not allege these impairments in his applications for
disability benefits is significant, even though some evidence of the impairments was later
developed. See Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (failure to allege
disabling mental impairment in application is significant, even if evidence of depression was later
developed).
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Claimant testified that he learned four months earlier that he has diabetes. (Tr. 40). He is
depressed, and he experiences manic states. (Tr. 41). Claimant takes medications for his mental
health conditions. (Tr. 42). Cindy Mayberry has treated him for at least six months. He was
hospitalized at Hannibal Regional for treatment. (Tr. 42). Claimant has an inhaler for his
breathing problem. (Tr. 45).
In a six-month time period, Claimant testified that he would have to miss work a couple
days each month due to the lack of sleep. (Tr. 44). He has an abscess every two to three months.
(Tr. 44). Claimant testified if he had an abscess flaring up he would not be able to work, because
he could not sit all day. (Tr. 40)
Claimant spends most of the day watching television, and he sometimes attends a 12-step
meeting with a friend. (Tr. 44). He last consumed alcohol on February 17, 2005. (Tr. 44).
At the end of the hearing, the ALJ noted he would schedule a supplemental hearing with a
medical expert to address if his diabetes causes the cysts. (Tr. 52).
B. Supplemental Hearing on May June, 2012
At the hearing on June 8, 2012, Claimant testified in response to questions posed
by the ALJ and counsel. (Tr. 54-72). Dr. John Pollard, the medical expert, testified that
Claimant had perianal abscesses drained in May 2010, October 2010, and May 2011 and was seen
in April 2012 for an anal fissure and a colonoscopy was done on August 10 to rule out
inflammatory bowel disease. (Tr. 59). The colonoscopy was negative except for a polyp which
was removed. Dr. Collins wrote a letter in March 2012 opining that Claimant has dozens of
perianal abscesses, but Dr. Pollard noted this is not reflected in the record. (Tr. 59).
Dr. Pollard testified that he is not able to determine the cause of the abscesses but noted
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that the colonoscopy in August 2010 ruled out inflammatory disease as a cause. (Tr. 62). Dr.
Pollard opined individuals with diabetes tend to get infections and if the abscess does not drain
spontaneously, a surgeon would incise and drain the abscess. An individual with an infection
would have pain. (Tr. 62). Dr. Pollard opined that the reoccurring abscesses would impose some
work-related limitations such as he could not sit for six hours and would need to get up and move
around. (Tr. 64). Dr. Pollard further opined that his pushing/pulling would be unlimited; he
could occasionally crawl, stoop, or bend; and he should avoid extreme cold and noxious fumes
because of his diagnosis of bronchial asthma. (Tr. 64).
Claimant testified that he has had four or five abscesses since the last hearing. (Tr. 66).
The shortest period of time for recovery from an abscess is over two weeks. (Tr. 68).
2. Testimony of Vocational Expert
Vocational Expert Gail Leonhardt testified in response to the ALJ’s questions. (Tr. 6871).
The ALJ asked Ms. Leonhardt to assume that
an individual 35 - 37 years of age with a high school education, no relevant past
work for purposes of my question. I’d like you to assume that the individual is
able to perform a full range of light exertional work, as that term is defined, with
the following additional limitations. With respect to sitting they would be limited
to two hours of sitting in an eight-hour day. The individual would need to avoid
environments containing extreme cold, heat, or concentrated exposure to smoke,
fumes, dust, gases.... Please tell us, in your opinion, would the hypothetical
individual I described be able to perform any unskilled occupations that exist in the
national, regional, or local economy?
(Tr. 69-70). Ms. Leonhardt opined that Claimant could work as a sales attendant, a light,
unskilled job where there are 4,037 jobs available in the four-state region and 88,015 jobs
available nationally. (Tr. 70). In addition, such individual would be able to perform work as an
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office helper, a light, unskilled job where there are 10,866 jobs available in the four-state region
and 224,097 jobs available nationally. Ms. Leonhardt further opined that Claimant could work as
a production assembler, a light, unskilled job where there are 1,920 jobs available in the four-state
region and 40,998 jobs available nationally. (Tr. 70).
The ALJ next asked Ms. Leonhardt to assume his previous question but “the individual is
also limited to performing simple and repetitive tasks, would that change you response any to my
first question?” (Tr. 71). Ms. Leonhardt responded no. Then the ALJ asked if he were to add
“the following limitation, the individual would miss a period of one to two weeks of being able to
report and perform work, and that one to two weeks would be missed on an average of every one
or two months, would that change your response any to my first question?” (Tr. 71). Ms.
Leonhardt indicated that would change her response inasmuch as this limitation would make
sustaining employability unfeasible. (Tr. 71).
3. Forms Completed by Claimant
In the Disability Report - Adult, Claimant noted he stopped working on December 28,
2007 because of his conditions and indicated on January 14, 2007, his conditions caused him to
make changes in his work activity. (Tr. 256).
In the Function Report Adult, Claimant reported doing the dishes and the laundry,
cleaning, watching television, going to meetings, reading, and cooking as his daily activities unless
he is down for the day. (Tr. 267, 269). He listed going to meetings, talking on the phone, and
emailing as his social activities. (Tr. 271).
In the Function Report Adult - Third Party, Sean Fratheim, a friend, reported Claimant
attends recovery group three to four times a week. (Tr. 286-93).
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III.

Medical Records
The April 2, 2009 MRI of his cervical spine showed at C3-C4 moderate to severe left

foraminal stenosis secondary to degenerative disease. (Tr. 504). The MRI of his lumbar spine
had normal findings. (Tr. 505).
On September 3, 2009, Claimant was voluntarily admitted to the University of Missouri
Health Care due to symptoms of depression and suicidal thoughts after presenting himself to the
emergency department. (Tr. 429, 435). He reported multiple stressors including homelessness,
losing custody of his children, having his assets auctioned off to pay for child support, end of
relationship with girlfriend, having to move multiple times, no transportation, and ongoing poor
physical health. (Tr. 429, 435). He reported being disabled and unable to work because of his
arthritis, fibromyalgia, and degenerative disc problems. (Tr. 429). At the time of admission,
Claimant was placed on suicide observation and seizure precautions and his assessed GAF score
was 35. (Tr. 430). A neurological examination showed bilateral suboccipital tenderness with
reproduction upon palpitation. He complained of multiple stressors primarily related to financial
problems, homelessness, and lack of employment. His mood and behavior continued to improve
throughout the hospitalization, and he reported that he was feeling better. (Tr. 430). Claimant
reported smoking cigarettes. (Tr. 437). During the neurology consultation, the doctor found the
examination to be remarkable for bilateral suboccipital tenderness with reproduction of the
headache. (Tr. 441). At the time of discharge, his assessed GAF score was 85, and he was
referred to outpatient treatment as follow-up treatment. (Tr. 430).
On March 31, 2010, Claimant received treatment in the emergency room at Moberly
Regional Medical Center for groin pain and headache. (Tr. 303-05).
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In the April 1, 2010 assessment, the treating doctor noted Claimant to be able to perform
all activities of daily living without assistance. (Tr. 306).
On May 21, 2010, Claimant sought treatment in the emergency room at Northeast
Regional Medical Center for abscess in groin and scrotum. (Tr. 325). The emergency room
doctor requested Claimant be seen by Dr. David Kermode for consultation. (Tr. 331). Claimant
reported having a history of pilonidal cyst and a past medical history of degenerative joint disease,
arthritis, depression, bipolar disorder, and fibromyalgia. (Tr. 331). Dr. Kermode recommended
draining the abscess under anesthesia. (Tr. 332).
On May 23, 2010, Dr. Kermode drained a perianal abscess and placed a Penrose drain.
(Tr. 328). Dr. Kermode noted Claimant had some inappropriate behavior throughout his
hospitalization including exposing himself on numerous occasions to hospital staff. (Tr. 329). He
opined that Claimant has other issues that need to be addressed from a mental health standpoint.
Examination showed Claimant to have greatly improved from his initial presentation to the
emergency room. (Tr. 329). The operative report included the diagnosis of perianal abscess,
right groin. (Tr. 340). Dr. Kermode drained Claimant's perianal abscess under anesthesia. (Tr.
340). Dr. Kermode noted he would hospitalize Claimant over night for pain control. (Tr. 341).
The radiology report of post drainage of right perirectal abscess showed no abscess cavity fluid
collections remain. (Tr. 338).
On May 27, 2010, Claimant returned to the emergency room and reported having
increased pain and bleeding. (Tr. 342-44).
Claimant was treated status post drainage of an abscess in the perianal region on June 4,
2010. (Tr. 319). Dr. Kermode examined him and found he had made a remarkable recovery.
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(Tr. 319). On June 11, Dr. Kermode noted that although the Penrose drain was to be removed
during treatment, Claimant removed the drain a week earlier due to discomfort. (Tr. 320). After
removing the drain, he sought treatment in the emergency room because he thought there might
be persistent abscess fluid and after being told this was not the case, he returned for follow-up
treatment as prescribed. Examination showed the area to be healing well, and Dr. Kermode
opened an abscess within the anal canal. Dr. Kermode found there to be no evidence of persistent
abscesses or of abnormality. Dr. Kermode prescribed Augmentin for another week and
prescribed Lortab and noted would schedule Claimant for a colonoscopy to determine whether he
has inflammatory bowel disease or other precipitating problem leading to the development of this
abscess. (Tr.320). In follow-up treatment on June 23, Dr. Kermode found nothing appearing to
be a gross recurrence but basically pain. (Tr. 321). Dr. Kermode opined that due to his persistent
discomfort, he worries about the possibility of a deep abscess and ordered a CT of his pelvis.
(Tr. 321).
In the June 24, 2010, clinic note, Dr. Kinshuk Sahaya found due to the relatively recent
onset headache then becoming chronic, Claimant should have neuro imaging and EEG, but he is
unable to afford due to his financial situation. (Tr. 384-85). Dr. Sahaya noted having seen
Claimant as an inpatient consultation on September 8, 2009 for headaches while he was admitted
for voluntary admission for suicidal ideation. (Tr. 383). He reported having headaches for the
last several years and described them as sharp stabbing pain with episodes of spasms in his face.
(Tr. 383). Dr. Sahaya recommended Claimant start taking Neurontin and Flexeril. Dr. Sahaya
performed a left suboccipital nerve block and opined he suspected Claimant has an underlying
migraine. (Tr. 385).
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In the June 28, 2010 psychiatric evaluation on referral by the Adair County Division of
Family Services as part of his application for Medicaid, Dr. Jeffrey Harden, D.O., noted Claimant
believes himself to be disabled by physical pain and severe depression. (Tr. 309). In terms of his
daily activities, he reported being capable of driving and usually doing his own cooking, laundry,
housekeeping, and shopping at the store but occasionally his physical pain prevents him from
being able to successfully engage in these activities. (Tr. 309). Screening of his cognitive
functioning revealed his to be fully oriented to person, place, and time. (Tr. 310). Dr. Harden
included in the diagnostic impression how Claimant has difficulty sustaining employment and
accessing healthcare. (Tr. 311). Dr. Harden opined that he was in need of ongoing specialized
mental health care. (Tr. 311).
During an office visit on July 14, 2010, Claimant presented with complaints of pain and
arthritis. (Tr. 312). Dr. Kermode reported he treated Claimant for a perianal abscess some weeks
ago and had ordered a CT of the pelvis, but he has not yet been approved for Medicaid, and he
cannot afford to pay for CT scan. (Tr. 312). For treatment, Janet Corbett, D.O., ordered him to
soak in warm water for twenty minutes three to four times a day and prescribed Bactrim. (Tr.
313). In follow-up treatment on July 28, Claimant reported now having Medicaid coverage and
experiencing rectal bleeding. (Tr. 314). On August 5, 2010, he complained of pain in lower
back, perianal cysts, syncope, and depression. (Tr. 316).
On July 21, 2010, Rachael Arnold, MSW, PLCSW, completed a psychosocial/clinical
assessment. (Tr. 395). Claimant reported being homeless and being very depressed. He noted he
wanted to secure employment. (Tr. 395). Claimant described his physical health to be poor and
has been historically treated for bipolar I disorder, ADHD, and depression. (Tr. 396). He has
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received inpatient treatment for drug and alcohol issues on four to five occasions. (Tr. 397). He
reported doing his own shopping and cooking, doing laundry, and washing dishes. (Tr. 398).
Claimant indicated that he wants to re-enroll in college soon. (Tr. 398).
The July 30, 2010 radiology report of his abdomen showed surgical removal of the drain
from right perirectal space and prominent right perirectal space subcutaneous emphysema and
multifocal stranding density to be nearly resolved and no fluid collection to suggest phlegmon or
abscess. (Tr. 349). Dr. Whitaker found there to be near complete resolution of previously
identified diffuse inflammatory change and subcutaneous emphysema involving right perirectal fat
space and no CT evident phlegmon or abscess. (Tr. 350).
In follow-up treatment on August 4, 2010, Claimant returned after having a CT
examination of the lower abdomen and pelvis and reported now having a primary care physician,
Dr. Corbett. (Tr. 322). Dr. Kermode found no evidence of persistent abscess and recommended
having a lower endoscopy. (Tr. 322).
On August 7, 2010, Claimant sought treatment in the emergency room at Northeast
Regional Medical Center for low back pain and reported having a history of degenerative disc
disease due to working as a construction worker for twenty two years and doing excessive lifting.
(Tr. 351-52).
The August 12, 2010, MRI of his brain showed unremarkable results. (Tr. 376, 380). The
tests returned as normal. (Tr. 377). The EEG showed no interictal abnormalities or seizures.
(Tr. 373).
On August 18, 2010, Dr. Reghnald Westhoff completed a psychiatric evaluation on
referral by Claimant. (Tr. 391). Claimant reported “trying to get on disability for long term
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problems with his mood disorder,” fibromyalgia, degenerative disc disease, arthritis, and collapsed
disc of his lower back. He reported two suicide attempts, one in 2000 when he was losing his job
and in a rocky marriage. The psychiatric review of his symptoms showed his mood to be
generally okay. (Tr. 391). His social history includes playing solitaire, reading a lot, and being
very active in AA meetings. (Tr. 392). Claimant reported last working doing construction work
in December 2007, but he had to stop due to his pain and passing out as a result of nerves
pinching his neck. (Tr. 393). He noted he tried to get treatment for a cyst for over one year and
experienced excruciating pain until he received appropriate treatment. Claimant denied any
problems with delusions or visual hallucinations and denied any current suicidal thoughts. (Tr.
393). Claimant reported his mood is doing fairly well at this time, but he has a chronic issue with
not being able to sleep, and he sometimes does not sleep for two to three days. (Tr. 394). Dr.
Westhoff recommended increasing his Abilify dosage, restart Lamictal, and return for follow-up in
three to four weeks. (Tr. 394).
On August 26, 2010, Dr. Kermode performed a colonoscopy as treatment for bowel habit
changes, and he removed a polyp (Tr. 355-58).
On September 20, 2010, Claimant returned status post total colonoscopy, and Dr.
Kermode noted draining an abscess in the perianal region. (Tr. 324). Dr. Kermode found no
evidence of recurrent fissure or rectal mass and found Claimant to have an excellent result. On
the colonoscopy, Claimant did have one area of an adenomatous polyp in his colon and no
evidence of inflammatory bowel disease. Dr. Kermode ordered Claimant to return in three years
for a colonoscopy. (Tr. 324).
The September 21, 2010, radiology report of his abdomen noted pelvic calcifications that
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may represent calcified foci within stool. (Tr. 367).
On September 30, 2010, Claimant returned for follow-up treatment for left suboccipital
neuralgia and underlying migraine. (Tr. 369). He reported the severity at a level nine. After
receiving a nerve block during his last visit, Claimant experienced improvement lasting two
months. (Tr. 369). Dr. Sahaya performed an occipital nerve block as treatment of his headaches
noting Claimant had a favorable response to the first block administered. (Tr. 372).
Claimant received treatment at Kirksville Family Medicine from October 7, 2010 through
June 27, 2011. (Tr. 445-92). He reported having an abscess and being out of Vicodin on
October 7, 2010. (Tr. 490). In follow-up on October 21, he reported feeling better and able to
cut down on Vicodin and improvement with abscess and fibromyalgia. (Tr. 487-88). He reported
having an abscess drained two weeks earlier and having tenderness when sitting and with
movement on November 3. (Tr. 484). He returned to have his abscess wound repackaged on
November 4, 5, 6, 8, and 9. (Tr. 479-83). Claimant reported feeling much better. (Tr. 479). On
November 17, he reported not having any perianal pain. (Tr. 477).
In the October 28, 2010 Mental Residual Functional Capacity Assessment, Dr. Mark
Altomari, PhD, found Claimant has the ability to understand, remember and carry out complex
instructions, to relate appropriately to coworkers and supervisors, adapt to most usual changes
common to a competitive work environment, and make simple work-related decisions. (Tr. 402).
Cynthia Mayberry, an advanced practice nurse, treated Claimant from January 20, 2011 to
August 2, 2011, every other month for therapy sessions. (Tr. 420-27). Claimant reported fishing
and music as his interests. (Tr. 426). On March 16, 2011, he reported how he decided to apply
to work at sheltered workshop. (Tr. 423).
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On January 7, 2011, Claimant was admitted to Hannibal Regional Hospital after “[t]alking
with people about suicidal thoughts.” (Tr. 494). He reported having had many problems for the
last six years including becoming separated in 2005, having intermittent access to his children,
being behind on child support, becoming homeless recently, having been in treatment for alcohol
dependence, having two previous suicide attempts, and being injured and unable to work. He is
currently taking Lamictal and Wellbutrin XL, and this medication regimen is partially controlling
his symptoms. Dr. Lyle Clark noted how Claimant consistently denied having suicidal ideation
throughout his hospitalization. (Tr. 494). He reported having made two suicide attempts and
being followed by Reggie Westhoff at Preferred. (Tr. 498). He listed primary support problems
including not being able to see his children, occupational problems including being disabled,
housing problems including being homeless, economic problems including having no income, and
legal system problems including being behind on child support as his psychological stressors. (Tr.
499). At the time of admission, he received a GAF of 21, and at discharge, he received a GAF of
55. (Tr. 495, 499). His discharge diagnosis included bipolar disorder, migraine headaches, low
back pain, and compressed cervical disk. (Tr. 495). Dr. Clark noted that Claimant would be seen
by Cindy Mayberry, APN, and prescribed Depakote, Loxitane, and Ativan as psychiatric
medications. (Tr. 496).
In follow-up treatment at Kirksville Family Medicine on January 26, 2011, Claimant
requested a new pain medication and received medication refills. (Tr. 473). On February 11, he
reported having been in Hannibal Psych facility last month for suicide ideation and being
depressed. (Tr. 471). On April 8, he reported chest pain and still smoking. (Tr. 466). On May
6, Claimant complained of back pain and reported he quit smoking as of that day. (Tr. 458).
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On May 27, 2011, Claimant returned to the Kirksville Family Medicine clinic for removal
of a scrotal abscess. (Tr. 451). On May 31, he reported feeling better and had the packing
changed. (Tr. 449). On June 6, he presented for follow-up and the doctor noted that his scrotal
abscess was almost completely healed. (Tr. 447).
In the September 6, 2011, Medical Source Statement, Ms. Mayberry completed the form
with check marks finding Claimant to be markedly limited in his ability to understand, remember,
and carry out detailed instructions and to maintain attention and concentration for extended
periods. (Tr. 507). She also found him markedly limited in his ability to complete a normal
workday and work-week without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods. (Tr.
508). Ms. Mayberry also found him to be markedly limited in his ability to accept instructions and
respond appropriately to criticism from supervisors. (Tr. 508).
In follow-up therapy on September 12, 2011, Claimant reported being frustrated because
his hearing was postponed. (Tr. 526). Ms. Mayberry noted she would see Claimant on a
bimonthly basis. (Tr. 526). On October 17, he reported waiting on disability and not accepting
not being able to work. (Tr. 525). Ms. Mayberry evaluated the issues with him. (Tr. 525). On
January 3, 2012, Claimant reported how he would be going to his SSI hearing on January 18, and
he enjoyed Christmas. (Tr. 524). On January 9, he reported being nervous about his SSI hearing.
(Tr. 523).
In a follow-up visit on November 3, 2011, Claimant complained of back pain with
symptoms aggravated by sitting, sneezing, and walking. (Tr. 594). He scored at a level of
moderate depression. (Tr. 594). Dr. Collins increased the dosage of hydrocodone for his spinal
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stenosis in the cervical region/lumbar spine. (Tr. 596). Dr. Collins prescribed Wellbutrin XL for
as treatment of his depression.
On November 23, 2011, Claimant returned to review labs with Dr. Collins and reported
pain when sitting, walking, and standing. (Tr. 597). Diabetes mellitus without mention of
complication is listed as his chronic problems. (Tr. 597). In the Neuro/Psychiatric review of
symptoms, Dr. Collins noted negative for anxiety, depression, and psychiatric symptoms. (Tr.
598). Claimant to return in two days for removal of cyst to tail bone. Dr. Collins noted that he
removed a cyst there years ago and now Claimant has another one. Dr. Collins prescribed
Bactrim to clear up the infection and prescribed Oxycodone for pain. (Tr. 599).
On November 25, 2011, Dr. Collins removed a pilonidal cyst with abscess from his tail
bone. (Tr. 601). Dr. Collins ordered a refill of oxycodone and increased MS Contin dosage to
twice a day. (Tr. 601). He reported exercising two to three times a week. (Tr. 602). Claimant
returned the next day to have the packing checked. (Tr. 605). Dr. Collins repacked the wound
and advised Claimant to call if his symptoms worsened or did not improve. (Tr. 607). On
November 28, the nurse repacked his abscess after he had a pilonidal cyst removed three days
earlier. (Tr. 608). Although he reported having some pain, Claimant reported the medications
“are actually working pretty good.” The nurse noted he is taking oxycodone and contin for pain.
He reported exercising two to three times a week in the social history. (Tr. 608). On November
30, he returned to have his abscess repacked and refilled Oxycodone prescription. (Tr. 591, 593).
Claimant returned for repacking on December 2 and reported he is feeling well and having only
minimal pain. (Tr. 587). The musculoskeletal examination showed a normal range of motion,
muscle strength, and stability in all extremities with no pain. (Tr. 589).
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On December 7, he presented for repacking and reported still having pain and some back
pain between shoulder blades. (Tr. 583). Based on physical examination, osteopathic
manipulative treatment was performed to lumbago area, and Claimant responded well to
treatment. (Tr. 583, 585). Claimant returned on December 13, to have the wound repackaged.
(Tr. 580). He exercises two to three times a week. (Tr. 580). When Dr. Collins repacked the
wound on December 16, he denied pain to the wound. (Tr. 577). On December 19, he reported
accidently pulling out packing and being very painful. (Tr. 573). Dr. Collins observed his wound
heeling on schedule, and he repacked the wound, because is not quite closed all the way. (Tr.
575). On December 21, Dr. Collins removed packing and found no need to repack area. (Tr.
570-72).
In the January 26, 2012, Medical Interrogatory Physical Impairments - Adults, Dr.
Richard Lavely listed bipolar disorder, arthritis, degenerative disc, migraines, hip problems, and
fibromyalgia as his impairments. (Tr. 510). Dr. Lavely opined that Claimant has no physical
problems that qualify for disability and noted bipolar disorder is beyond his expertise so he would
defer to a psychiatrist to make a disability determination as to bipolar disorder. (Tr. 512).
In the Medical Source Statement of Ability to Do Work Related Activities (Physical), Dr.
Lavely found Claimant able to lift and carry up to ten pounds continuously , and able to reach,
handle, and push/pull continuously with both hands. (Tr. 514, 516). Dr. Lavely found he could
never climb ladders or scaffolding and occasionally kneel, crouch, or crawl due to his
abnormalities of his lower back, the mild encroachment of the cervical region C3-C4. (Tr. 517).
Dr. Lavely opined that no normal person could stand extreme heat or extreme cold. (Tr. 518).
Dr. Lavely further opined any work involving much interaction with others would be difficult
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because of his psychiatric diagnosis. (Tr. 519).
In the February 10, 2012 letter, Claimant’s counsel responded to proffered interrogatory
answers and disagreed with Dr. Lavely’s assessment as follows:
I do not believe his opinion is consistent with the record at all. Neither 17F nor
18F [Dr. Lavely’s assessments] make any mention of the claimant’s recurrent
perianal abscess impairment, which is a very significant limitation. Dr. Lavery (sic)
doesn’t discuss the nature of the abscesses, the complications from the abscesses,
or the exertional limitations resulting from the abscesses. Dr. Lavery (sic)
concludes the claimant is unrestricted in his ability to sit and stand. This is simply
not supported by the evidence. The abscesses are mentioned throughout the
record, .... Treatment has included several surgical procedures ....
I believe it would be beneficial to have a supplemental hearing to allow questioning
regarding the vocational impact of these abscesses, in terms of both sitting
limitations and in terms of absenteeism from work.
I believe the combination of claimant’s physical and mental impairments preclude
any work on a sustained basis. Thank you for your consideration.
(Tr. 301).
On February 2, 2012, Claimant returned for a medication refill for oxycodone and
morphine and reported worsening back pain with his symptoms aggravated by standing and
walking and relieved by pain medications. (Tr. 567). He indicated that his back has hurt for
years. (Tr. 567). Dr. Collins refilled oxycodone and morphine for a month. (Tr. 569).
Hydrocolator applied as treatment for his lumbago pain, but he reported not feeling any better.
He tolerated the osteopathic manipulative treatment well and improved after treatment. (Tr. 569).
Claimant reported having symptoms of a cyst in the groin area four days earlier on February 7
with the symptoms being moderate and occurring daily. (Tr. 562). He reported a cough and still
smoking. (Tr. 562). He tried to stop smoking and did not smoke for six months. (Tr. 563).
Musculoskeletal examination showed a normal range of motion, muscle strength, and stability in
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all extremities with no pain. (Tr. 565). Dr. Collins drained the cyst with an incision. (Tr. 565).
On March 1, 2012, Claimant returned for a medication refill and reported experiencing
insomnia with worsening symptoms and depression. (Tr. 558). In the Neuro/Psychiatric review
of symptoms, Dr. Collins noted positive for depression and difficulty sleeping and negative for
anxiety, difficulty concentrating, personality changes, and psychiatric symptoms. (Tr. 560). Dr.
Collins increased the MS Contin dosage as treatment of his chronic neck pain and refilled Prozac
until he could see Ms. Mayberry. (Tr. 560).
In the March 5, 2012 letter, Dr. Collins noted as follows:
I have been Mr. Wiese’s Primary Care Physician(PCP) of the last ten years. Over
that period of time, Joe has developed Abscesses in the perirectal region more than
a dozen times, that I can personally remember. He has had others that have been
cared for by my partners as well. Despite his good hygiene habits, Joe suffers from
there abscesses, or pockets of active infection, pus. As he has a phenomenon
called Pilondial Cysts. These cysts are congenital, or present at birth. Though
they may not pose a threat until adulthood. These cysts, or fluid filled pockets
occur from a skin tract that is formed and becomes closed off or clogged with skin
debri and oils. The pocket of fluid becomes infected, and the pocket expands.
This results in an abscess or pocket of pus.
These abscesses are extremely painful, often requiring pain medicines used in postsurgical patients. The reason certainly makes sense, as these abscesses require
surgery to correct. Fortunately for Joe, these have been accomplished as in-office
procedures. The resulting wounds frequently take weeks to heal, and require near
daily visit to the doctor’s office for dressing changes and inspection. Often the
patient cannot sit without severe pain. It is believed by many, including me, that
sitting for long periods of time contribute to these abscesses arising, as well as
causing pain during healing. If the pain can be reasonable[sic] controlled, often
side affects[sic] of the medications occur, such as drowsiness, or lowering the level
of consciousness. Patients may be restricted from driving or the use of machinery.
I frequently have patients avoid child-care responsibilities as judgment may be
seriously affected by the pain, the pain medicine, or both. Memory deficits can
occur, where you “think” you fed the baby, did the safety check, or turned off the
engine. Very frequently, the infection itself can cause these side affects[sic] and
can be the 1st sign of an infection. Joe has suffered from abscesses such as these
between two to four times per year. With weeks being needed for recovery, Joe
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has precious little time between episodes, during “bad years.” Although Joe is
bright and possesses a good work ethic, he has not been able to work very
regularly due to absenteeism. This may add up to entire weeks missed during a
given month. Jobs that require primarily sitting are very difficult, as a contributor
to the development of these abscesses and also in the pain associated with their
healing.
As well, Joe has several other medical problems, including Chronic Pain
Syndrome, Bipolar Disorder, Degenerative Disk Disease, Fibromyalgia Syndrome,
Diabetes Mellitis, and Depression. All of these health problems contribute
negatively to Joe’s condition, and his ability to function normally on a daily basis.
Unfortunately, it is unlikely that Joe will experience much improvement in these
conditions over the long run.
(Tr. 520).
Claimant returned on April 2, 2012, and reported back pain with symptoms relieved by
pain medications. (Tr. 554). He asked Dr. Collins about surgery inasmuch as he has stopped
activities he enjoyed such as hunting and mushroom hunting due to the pain in his back. Claimant
indicated that he contacted Mid Missouri Spine Center, but he needed a MRI for back
consultation. (Tr. 554). Dr. Collins made a referral for evaluation and treatment at Mid Missouri
Spine Clinic and ordered a MRI of his cervical thoracic and lumbar spine. (Tr. 556). In an urgent
care visit, Claimant reported an abscess on left buttock with symptoms starting two days earlier
on April 9 with aggravating factors including walking and sitting. (Tr. 550). He stated that he
has had dozens of cysts and as a result, has difficulty walking. (Tr. 550). Dr. Collins noted that
he presented with anal fissure and prescribed Flagyl and Cipro and referred him to Dr. Kermode
to be seen as soon as possible for evaluation and treatment. (Tr. 552).
The April 9, 2012 x-ray of his cervical spine showed straightening of the normal lordotic
curve. (Tr. 528). The x-ray of his lumbar spine showed normal results. (Tr. 529).
On April 16, 2012, Dr. Kermode noted having removed a pilondal cyst in 1998 and 2012
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and noted Claimant to be presently disabled. (Tr. 537). Examination showed an open fistulous
tract at the 8:00 position with the coccyx being at the 12:00 position and recommended further
diagnostic testing. Dr. Kermode found that he did not think Claimant had an abscess and
recommended examination under anesthesia. After noting he is leaving the area in a couple of
weeks, Dr. Kermode noted he would refer Claimant to a colorectal surgeon. (Tr. 537).
On April 16, Claimant returned for a medication refill, to discuss pain management, and
for follow-up for anal fissue. Claimant reported after completing his evaluation, Dr. Kermode
referred Claimant to Columbia for surgery on May 1 to treat his anal fissure. (Tr. 546). Dr.
Collins prescribed Fentanyl and MS Contin for his chronic neck pain. (Tr. 548). Dr. Collins
noted the x-ray shows the osteoarthritis is in his back and neck region and made a referral for a
MRI. (Tr. 548).
In a therapy session on April 26, 2012, Claimant discussed with Ms. Mayberry how he is
worried about his court case. (Tr. 522).
Claimant returned on May 2, 2012 complaining of back pain and anxiety. (Tr. 542). He
requested being switched back to MS Contin as pain treatment and a refill of Lorazepam for
anxiety. (Tr. 542). Dr. Collins found lesions of sacral region and performed osteopathic
manipulation treatment to areas of somatic dysfunction. (Tr. 544).
The May 7, 2012 MRI of his cervical spine revealed loss of normal lordosis, otherwise
normal results. (Tr. 530). The MRI of his lumbar spine revealed normal results. (Tr. 532). The
MRI of his thoracic spine showed normal results. (Tr. 534).
In a letter dated May 20, 2012, Dr. John Small, PhD, recommended disability after

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evaluating Claimant. (Tr. 611-12).4 This evaluation appears to be based on information provided
by Claimant. (Tr. 611-12).
On May 30, 2012, Claimant returned for medication refills of morphine and MS Contin
and MRI results. (Tr. 538). The MRI results from Missouri Spine Center were normal but show
abnormal curvature likely related to chronic muscle spasm. (Tr. 539). He reported exercising
two to three times a week. (Tr. 540). The Neuro/Psychiatric review of symptoms was positive
for headache but negative for anxiety, depression, or psychiatric symptoms. (Tr. 540). He
reported his current medications are managing his chronic neck pain, and Dr. Collins refilled the
prescription for morphine and MS Contin. (Tr. 541). Dr. Collins noted that MRIs have no
significant pathology, but the reports are not consistent with how Claimant presents on physical
examination and referred him to a specialist. (Tr. 541).
IV.

The ALJ's Decision
The ALJ found that Claimant meets the insured status requirements of the Social Security

Act through December 31, 2012. (Tr. 14). Claimant has not engaged in substantial gainful
activity since April 30, 2010, the alleged onset date. The ALJ found that the medical evidence
establishes that Claimant had the following severe impairments: fibromyalgia, asthma, bipolar
disorder, depression, and irritable bowel syndrome with recurrent and fissures, but no impairment
or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4. (Tr. 14-16). The ALJ opined that Claimant has the residual functional
capacity to perform light work except that he is limited to sitting no more than two hours out of
4

Further, a physician’s opinion that a claimant is “disabled” or “unable to work” does not
carry “any special significance,” 20 C.F.R. § 416.927(e)(1), (3), because it invades the province of
the Commissioner to make the ultimate determination of disability. House v. Astrue, 500 F.3d
741, 745 (8th Cir. 2007).
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an eight hour workday; should avoid extreme cold and heat, or concentrated exposure to smoke,
fumes, dust, or gasses. (Tr. 16). The ALJ further found that he is limited to performing simple
and repetitive tasks. (Tr. 17). The ALJ found that Claimant is unable to perform any past
relevant work. (Tr. 22).
The ALJ found Claimant was born on September 13, 1974, and was thirty-five years old
which is defined as a younger individual on the alleged disability onset date. (Tr.22). The ALJ
noted Claimant has a high school education and is able to communicate in English. (Tr. 22). The
ALJ noted that the transferability of job skills is not an issue because using the MedicalVocational Rules supports a finding that Claimant is not disabled whether or not Claimant has
transferable job skills. Considering Claimant’s age, education, work experience, and residual
functional capacity, the ALJ opined there are jobs that exist in significant numbers in the national
economy that Claimant can perform such as sales attendant, office helper, and production
assembler. (Tr. 22-23). The ALJ concluded that Claimant was not been under a disability from
April 30, 2010, through the date of this decision. (Tr. 23).
V.

Discussion
In a disability insurance benefits case, the burden is on the claimant to prove that he or

she has a disability. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the
Social Security Act, a disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Additionally, the
claimant will be found to have a disability “only if his physical or mental impairment or
- 23 -

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) and
1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the
individual is engaged in “substantial gainful activity.” If she is, then she is not eligible for
disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the ALJ must consider step two which
asks whether the individual has a “severe impairment” that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant is
not found to have a severe impairment, she is not eligible for disability benefits. If the claimant is
found to have a severe impairment the ALJ proceeds to step three in which he must determine
whether the impairment meets or is equal to one determined by the Commissioner to be
conclusively disabling. If the impairment is specifically listed or is equal to a listed impairment,
the claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the impairment is not listed or is
not the equivalent of a listed impairment, the ALJ moves on to step four which asks whether the
claimant is capable of doing past relevant work. If the claimant can still perform past work, she is
not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ
proceeds to step five in which the ALJ determines whether the claimant is capable of performing
other work in the national economy. In step five, the ALJ must consider the claimant’s “age,
education, and past work experience.” Only if a claimant is found incapable of performing other
work in the national economy will she be found disabled. 20 C.F.R. § 404.1520(f); see also
- 24 -

Bowen, 482 U.S. at 140-41 (explaining five-step process).
Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
1.

The credibility findings made by the ALJ.

2.

The claimant's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The claimant's subjective complaints relating to
exertional and non-exertional activities and impairments.

5.

Any corroboration by third parties of the
claimant's impairments.

6.

The testimony of vocational experts when required which
is based upon a proper hypothetical question which sets forth the claimant's
impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting
- 25 -

Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The ALJ’s decision whether a person is disabled under the standards set forth above is
conclusive upon this Court “if it is supported by substantial evidence on the record as a whole.”
Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547 F.3d 933, 935
(8th Cir. 2008)). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion.” Wiese, 552 F.3d at 730
(quoting Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). When reviewing the
record to determine whether the Commissioner’s decision is supported by substantial evidence,
however, the Court must consider evidence that supports the decision and evidence that fairly
detracts from that decision. Id. The Court may not reverse that decision merely because
substantial evidence would also support an opposite conclusion, Dunahoo v. Apfel, 241 F.3d
1033, 1037 (8th Cir. 2001), or it might have “come to a different conclusion.” Wiese, 552 F.3d at
730. Thus, if “it is possible to draw two inconsistent positions from the evidence and one of those
positions represents the agency’s findings, the [Court] must affirm the agency’s decision.”
Wheeler v. Apfel, 224 F.3d 891, 894-95 (8th Cir. 2000). See also Owen v. Astrue, 551 F.3d 792,
798 (8th Cir. 2008) (the ALJ’s denial of benefits is not to be reversed “so long as the ALJ’s
decision falls within the available zone of choice”) (internal quotations omitted).
Claimant argues that the ALJ's decision is not supported by substantial evidence on the
record as a whole, because the ALJ failed to properly give controlling weight to the opinion of
Dr. Collins, his treating doctor. Next, Claimant contends that the ALJ that “absent information
from the treating sources, it is not possible to ascertain Plaintiff’s ability to work without
engaging in medical conjecture.”
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A.

Weight Given to Treating Doctor’s Opinion of March 5, 2012
Claimant contends that the ALJ failed to properly give controlling weight to the opinion of

Dr. Collins.
The ALJ considered the opinion of Dr. Collins in the March 5, 2012 letter and gave little
weight to his opinion in his written opinion as follows:
Dr. Collins’ opinion, while it does provide some explanation of the claimant’s
impairment with respect to his recurrent abscesses, does not provide a function by
function analysis of what the claimant can or cannot do as a result of his
impairments. Dr. Collins opines that the claimant’s impairments “contribute
negatively” to his ability to function normally on a daily basis, but does not explain
exactly what that means. Furthermore, much of the opinion is hypothetical in
nature, referring obliquely to what generic patients “may” experience given the
claimant’s medical conditions. Given the lack of a function by function analysis
and the generally vague character of this opinion it is ultimately of little value in
determining a residual functional capacity for the claimant. As such, it is afforded
little weight.
(Tr. 19).
"A treating physician's opinion is given controlling weight if it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [a claimant's] case record.’" Tilley v. Astrue, 580 F.3d 675, 679 (8th
Cir. 2009) (quoting 20 C.F.R. §404.1527(d)(2) (alteration in original). "[W]hile a treating
physician's opinion is generally entitled to substantial weight, such an opinion does not
automatically control because the [ALJ] must evaluate the record as a whole." Wagner v. Astrue,
499 F.3d 842, 849 (8th Cir. 2007) (internal quotations omitted). Thus, "‘an ALJ may grant less
weight to a treating physician's opinion when that opinion conflicts with other substantial medical
evidence contained within the record.'" Id. (quoting Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th
Cir. 2000)). It is the ALJ’s duty to resolve conflicts in the evidence, and the ALJ’s finding in that
- 27 -

regard should not be disturbed so long as it falls within the “available zone of choice.” See
Hacker v. Barnhart, 459 F.3d 934, 937-38 (8th Cir. 2006).
A treating physician’s opinion may be, but is not automatically, entitled to controlling
weight. 20 C.F.R. § 404.1527(d)(2). Controlling weight may not be given unless the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic techniques. SSR 96-2P,
1996 WL 374188 (July 2, 1996). Even a well-supported medical opinion will not be given
controlling weight if it is inconsistent with other substantial evidence in the record. Id. “The
record must be evaluated as a whole to determine whether the treating physician’s opinion should
control.” Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009). When a treating physician’s
opinions “are inconsistent or contrary to the medical evidence as a whole, they are entitled to less
weight.” Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010( (quoting Krogmeier v.
Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002)). “A treating physician’s opinion does not
automatically control, since the record must be evaluated as a whole.” Perkins v. Astrue, 2011
WL 3477199, *2 (8th Cir. 2011) (quoting Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir.
2009)). The ALJ is charged with the responsibility of resolving conflicts among the medical
opinions. Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008).
In a letter dated March 5, 2012, Dr. Collins opined that Claimant’s abscesses caused
severe pain when sitting, required near daily visits to the doctor’s office, and occurred two to four
times a year on average, resulting in excessive absenteeism and thus finding Claimant to be
incapable of full-time employment.
The ALJ found the opinion was not entitled to controlling weight, because it was not
supported by the objective medical evidence, hypothetical in nature, and lacked function by
- 28 -

function analysis. It is well-established that if the doctor’s opinion is inconsistent with or contrary
to the medical evidence as a whole, the ALJ can accord it less weight. Travis v. Astrue, 477 F.3d
1037, 1041 (8th Cir. 2007); Hacker, 459 F.3d at 937. Indeed, the Eighth Circuit has held:
A treating physician’s own inconsistency may also undermine his opinion and
diminish or eliminate the weight given his opinions. We have allowed an ALJ to
substitute the opinions of non-treating physicians in several instances, including
where a treating physician “renders inconsistent opinions that undermine the
credibility of such opinions.”
Hacker, 459 F.3d at 937 (quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). See
Goetz v. Barnhart, 2006 WL 1512176, at *2 (8th Cir. June 2, 2006) (declining to give controlling
weight to the treating physician’s opinion because the treating physician’s notes were inconsistent
with her residual functional capacity assessment)).
The ALJ acknowledged that Dr. Collins was a treating source, but that his opinion of
March 5, 2012 was not entitled to controlling weight, because it was inconsistent with his
prescribed medical treatment . See Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If the
doctor’s opinion is inconsistent with or contrary to the medical evidence as a whole, the ALJ can
accord it less weight.”). Likewise, Dr. Collins’ opinion is inconsistent with his own treatment
notes. 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 clinical
treatment notes.”). An ALJ may “discount or even disregard the opinion of a treating physician ...
where a treating physician renders inconsistent opinions that undermine the credibility of such
opinions.” Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000); Hackler, 459 F.3d at 937
(holding that where a treating physician’s notes are inconsistent with his or her RFC assessment,
controlling weight is not given to the RFC assessment). Indeed, in his treatment notes Dr. Collins
- 29 -

never set forth any specific limitations on physical activity and in particular, sitting. Dr. Collins’
treatment notes do not reflect the degree of limitation he noted in his March 5, 2012 opinion.
Indeed, he never made a finding of disability or imposed any work related limitations.
Further, as noted by the ALJ, how much of Dr. Collins’ opinion is hypothetical in nature referring
to what generic patients may experience given Claimant’s medical conditions. “[A] treating
physician’s opinion does not deserve controlling weight when it is nothing more than a conclusory
statement.” Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008). See also Casey v. Astrue,
503 F.3d 687, 693 (8th Cir. 2007) (finding that “ALJ acted within the acceptable zone of choice”
when declining to give treating physician’s RFC assessment controlling weight; opinion was not
supported by any clinical or laboratory diagnostic data); Randolph v. Barnhart, 386 F.3d 835, 839
(8th Cir. 2004) (finding that ALJ had not erred by discrediting opinions and findings of claimant’s
treating physician; treating physician completed checklist that mirrored mental impairment’s
listing, her treatment notes did not indicate she had sufficient knowledge on which to base her
conclusion that claimant could not work, and she never asked claimant about his abilities to
function in areas that she concluded he could not). The undersigned concludes that the ALJ did
not err in affording little weight to Dr. Collins’ opinion of March 5, 2012. Strongson v. Barnhart,
361 F.3d 1066, 1071 (8th Cir. 2004) (holding that it was reasonable for the ALJ to give little
probative value to treating physician’s conclusory statement that claimant was vocationally
impaired when such statement was without explanation and was not consistent with physician’s
treatment notes).
The ALJ thoroughly reviewed the medical evidence of record and accorded it the weight it
was due. The ALJ gave significant weight to the opinion testimony of Dr. John Pollard, the
- 30 -

impartial medical expert, who testified Claimant could stand for six hours out of an eight hour
workday and should avoid prolonged sitting, i.e., he could not sit steadily for six hours out of an
eight hour workday. The ALJ found Dr. Pollard’s opinion to be consistent with the medical
record as a whole. See Hensley v. Barnhart, 352 F.3d 353, 356 (8th Cir. 2003) (finding that ALJ
properly discounted treating physician’s RFC determination; the opinions conflicted with that
given by specialist and the specialist’s opinions were consistent with evidence). Claimant’s
contention that absent information from the treating source, the ALJ cannot ascertain his ability to
work without engaging in medical conjecture is without merit. The Eighth Circuit has, however,
upheld the Commissioner’s RFC in cases where the ALJ did not rely on a treating physician’s
functional assessment of the claimant’s abilities and limitations. See Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011) (“[T]he ALJ [was] not required to rely entirely on a particular
physician’s opinion or choose between the opinions [of] any of the claimant’s physicians.”). See
also Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004) (medical evidence, state agency
physicians’ assessments, and claimant’s reported activities of daily living supported RFC finding).
Weighing of the evidence is a function of the ALJ. Masterson v. Barnhart, 363 F.3d 731, 736
(8th Cir. 2004).
Having reviewed the record as a whole and the ALJ’s reasoning, the undersigned cannot
say that the ALJ was in error when he opined that Dr. Collins’ assessment of Claimant’s
limitations was inconsistent with the objective medical evidence. Nor does the undersigned find
that looking at the record as a whole the ALJ erred by opining that Dr. Collins’s opinion is
inconsistent with his own treatment notes and the findings of non-examining sources and
consultative examiners.
- 31 -

In compliance with the applicable regulations, the ALJ assessed the record as a whole to
determine whether the treating physician’s opinion was inconsistent with other substantial
evidence on the record. 20 C.F.R. § 404.1527(d)(2). Having determined that it was, the ALJ
properly diminished the weight given to the treating doctor’s opinion.
While there is evidence to support a contrary result, the ALJ’s determination is supported
by substantial evidence on the record as a whole. “It is not the role of [the reviewing] court to
reweigh the evidence presented to the ALJ or to try the issue in this case de novo.” Wiese v.
Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (citation omitted). “If after review, [the court] find[s]
it possible to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, [the court] must affirm the denial of benefits.” Id.
(quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)). Accordingly, the decision of the
ALJ denying Claimant's claims for benefits should be affirmed.
Conclusion
Considering all the evidence in the record, including that which detracts from the ALJ’s
conclusions, the Court finds that there is substantial evidence to support the ALJ’s decision. “As
long as substantial evidence in the record supports the Commissioner’s decision, [this Court] may
not reverse it [if] substantial evidence exists in the record that would have supported a contrary
outcome or [if this Court] would have decided the case differently.” Krogmeier v. Barnhart, 294
F.3d 1019, 1022 (8th Cir. 2002) (internal quotations omitted). Accordingly,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the final decision of
the Commissioner denying social security benefits be AFFIRMED.
Judgment shall be entered accordingly.
- 32 -

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

Dated this 5th day of September, 2014.

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