Tate v. Colvin

Filing 20

MEMORANDUM OPINION: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Shirley P. Mensah on 3/19/15. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CARMEN TATE,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Case No. 2:14-CV-15-SPM

MEMORANDUM OPINION
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security,
regarding the applications of Plaintiff Carmen Tate (“Plaintiff”) for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
(the “Act”). The Commissioner found Plaintiff entitled to benefits only for a closed period of
disability lasting from March 15, 2010 through April 1, 2011. (Tr. 12-27). The parties consented
to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 8).
Because I find the decision was supported by substantial evidence, I will affirm the
Commissioner’s decision.
I.

PROCEDURAL BACKGROUND

On March 11, 2010, Plaintiff applied for DIB and SSI, alleging that she had been unable
to work since March 24, 2009, due to heart problems, emphysema, and anxiety. (Tr. 144-57,

1

239). On June 9, 2010, her application was initially denied. (Tr. 89-93). On July 23, 2010,
Plaintiff filed a request for hearing before an administrative law judge (“ALJ”). (Tr. 96-97). On
May 8, 2012, the ALJ held a hearing. (Tr. 36-68). On the same day, Plaintiff amended her
alleged onset date to March 15, 2010. (Tr. 208). On August 13, 2012, the ALJ issued a partially
favorable decision, finding that Plaintiff was entitled to a closed period of disability from March
15, 2010, through April 1, 2011. (Tr. 12-27). On October 17, 2012, Plaintiff filed a Request for
Review of Hearing Decision with the Social Security Administration’s Appeals Council. (Tr. 7).
On December 17, 2013, the Appeals Council denied the request for review. (Tr. 1-6). Plaintiff
has exhausted all administrative remedies, and the decision of the second ALJ stands as the final
decision of the Commissioner of the Social Security Administration.
II.

FACTUAL BACKGROUND1

Plaintiff’s medical records show that she was diagnosed with breast cancer in August
2010 and underwent a left radical mastectomy the same month. (Tr. 467-71, 522-24, 832-34).
Between September 22, 2010 and March 28, 2011, Plaintiff underwent several courses of
chemotherapy. (Tr. 655-60, 661, 687, 717-91). In 2010 and early 2011, Plaintiff was also
diagnosed with chronic obstructive pulmonary disease (“COPD”), borderline glaucoma,
pneumonia, gastroesophageal reflux disease (“GERD”), chest pain not otherwise specified, and
emphysema. (Tr. 422, 434, 497, 556, 587-88, 601, 607, 928-30). Since her chemotherapy ended,
Plaintiff has received treatment for COPD and other lung issues, treatment for GERD, and
follow-up evaluation regarding her breast cancer. (Tr. 702-15, 951-76, 990-1108). The record
also contains a Medical Source Statement from one of her treating physicians, first filled out in
September 2011 and reaffirmed in April 2012. (Tr. 890-93, 1005-08).

1

This is not intended to be a complete summary of Plaintiff’s extensive medical record, but
rather a brief description of those records most relevant to Plaintiff’s appeal.
2

At the hearing before the ALJ on May 8, 2012, Plaintiff testified that she was 47 years
old, was unmarried, and lived with her sister. (Tr. 37-38). She has a high school diploma but
received special education services within the regular classroom. (Tr. 39). She smokes half a
pack of cigarettes a day. (Tr. 42).
Plaintiff testified that she stopped working in 2010 due to illness and pain. (Tr. 40). She
testified that she is tired and gets short of breath when getting up in the morning, getting dressed,
and walking. (Tr. 43, 49, 54-55). She attributes the shortness of breath to her cancer rather than
to her lung problems. (Tr. 43). She reported that she has severe chest pains every three to four
months. (Tr. 58-59). She also reported that she has numbness and pain in her left side, including
some numbness that goes down to her fingertips and affects her ability to move and lift with her
left arm. (Tr. 50, 52). She can stand for two hours at a time but feels weak after doing so. (Tr.
57).
During a typical day, she babysits for her niece for four hours, which involves watching
television with her. (Tr. 41, 56-57). She also gets lunch for her niece. She helps around the house
cooking, dusting, and doing dishes, but she does not vacuum because her arms hurt. (Tr. 41-42,
56). She spends a lot of time sitting on the couch, which she does for up to two or four hours at a
time. (Tr. 51, 55). She also naps each day for up to three hours. (Tr. 48).
III.

STANDARD FOR DETERMINING DISABILITY UNDER THE ACT

To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “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

3

has lasted or can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.
2010). The impairment must be “of such severity that [the claimant] is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.” 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. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant has a severe impairment, which is
“any impairment or combination of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii),
416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the
claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii);
McCoy, 648 F.3d at 611. If the claimant has such impairment, the Commissioner will find the
claimant disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20
C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.

4

Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20
C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the Commissioner determines whether the
claimant can return to his past relevant work, by comparing the claimant’s RFC with the physical
and mental demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1520(f), 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform
his past relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next
step. Id. At Step Five, the Commissioner considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant can make an adjustment to other work in the
national economy; if the claimant cannot make an adjustment to other work, the claimant will be
found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s age, education, and work experience, there are a significant number of other
jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d 1062,
1064 (8th Cir. 2012).
IV.

THE ALJ’S DECISION

Applying the foregoing five-step analysis, the ALJ found that during the period from
March 15, 2010 through April 1, 2011, Plaintiff was under a disability. (Tr. 20). However, the
ALJ found that as of April 2, 2011, Plaintiff was no longer under a disability. (Tr. 27).
Specifically, as to the period starting April 2, 2011, the ALJ found that Plaintiff had the severe
impairments of COPD, emphysema, and left breast cancer (Tr. 16, 20); did not have an

5

impairment that met or equaled the severity of any of the impairments listed in 20 C.F.R. Part
404, Subpart P, Appendix 1; and had the RFC to perform sedentary work, “except the claimant
can occasionally push and pull with the non dominant left upper extremity; the claimant can
occasionally climb ramps and stairs; the claimant should never climb ladders, ropes, or scaffolds;
the claimant can occasionally stoop, kneel, crouch, and crawl; the claimant can occasionally
reach overhead with the non dominant left upper extremity; the claimant should avoid
concentrated exposure to extreme temperatures, wetness, and humidity; the claimant should
avoid moderate exposure to irritants; and the claimant should avoid concentrated exposure to
unprotected heights and hazardous machinery.” (Tr. 23). The ALJ found that Plaintiff was
unable to perform her past relevant work; however, relying on the testimony of a vocational
expert, the ALJ found that there were other jobs existing in significant numbers in the national
economy that Plaintiff could perform. (Tr. 26-27). The ALJ therefore found that Plaintiff was not
under a disability as of April 2, 2011. (Tr. 27).
V.

DISCUSSION

Neither party challenges the ALJ’s decision that Plaintiff was disabled from March 15,
2010 through April 1, 2011. However, Plaintiff argues that the ALJ made several errors in
finding that Plaintiff was not disabled as of April 2, 2011. Specifically, she argues that (1) when
finding Plaintiff’s disability had an end date, the ALJ improperly failed to apply the “medical
improvement standard” set forth in 20 C.F.R. § 404.1594(b)(1); (2) the ALJ failed to give
adequate weight to the opinion of Plaintiff’s treating physician, Dr. Meesha Gwan-Nulla; (3) the
ALJ failed to properly assess the credibility of Plaintiff’s subjective complaints; (4) the ALJ
failed to give proper weight to the reports of Plaintiff’s family members; (5) the ALJ failed to
take into account all of the relevant evidence in assessing Plaintiff’s RFC; and (6) the ALJ erred

6

by relying on a hypothetical question posed to the vocational expert that did not include all of
Plaintiff’s limitations.2
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); 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).
“Substantial evidence ‘is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir.
2012) (quoting Moore, 572 F.3d at 522). 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)).

2

In the interest of clarity, the Court considers these arguments in a different order than they were
raised in Plaintiff’s brief.
7

B. The ALJ Did Not Err in Failing to Properly Apply the “Medical
Improvement” Standard When Finding Plaintiff’s Disability Ended April
1, 2011
Plaintiff argues that the ALJ erred by failing to properly apply the “medical
improvement” standard set forth in in 20 C.F.R. § 404.1594(b) to determine whether Plaintiff’s
disability continued or ended.3 This argument is without merit. Although the ALJ couched her
decision in terms of “medical improvement” and appears to have attempted to apply that
standard in her decision, the Eighth Circuit has held that the “medical improvement” analysis is
not required where the ALJ “determine[s] in a single proceeding the fact of [the claimant’s]
disability, the extent of the disability, and the duration of the disability.” Camp v. Heckler, 780
F.2d 721, 721-22 (8th Cir. 1986). See also Eckelstafer v. Barnhart, 51 F. App’x 185, 186 (8th
Cir. 2002) (“In Camp v. Heckler, this court rejected the application of the medical-improvement
standard in cases such as this one, where the ALJ determined in one proceeding the fact, extent,
and duration of a claimant’s disability.”) (citation omitted); Anderson v. Colvin, No. 13-3089,
2014 WL 5528210, at *3 (W.D. Ark. Nov. 3, 2014) (recognizing that the ALJ used the eight-step
medical improvement standard in his decision but noting, “it was not necessary to do so, because
when in a single proceeding, the fact of disability, the extent of the disability, and the duration of
the disability are all determined, the case is not a medical improvement case”; considering
whether substantial evidence supported the ALJ’s finding that the plaintiff was capable of
performing substantial gainful activity as of the date he found the disability ended).

3

20 C.F.R. § 404.1594(a) provides, in part, “[I]f you are entitled to disability benefits, your
continued entitlement to such benefits must be reviewed periodically. . . . We must determine if
there has been any medical improvement in your impairment(s) and, if so, whether this medical
improvement is related to your ability to work. . . .” Section 404.1594(b) provides further details
regarding application of the “medical improvement” standard.
8

Here, the ALJ determined in a single proceeding that Plaintiff was disabled and that the
disability ended April 1, 2011. Thus, she was not required to apply the medical improvement
analysis, and the Court’s task is to determine whether substantial evidence supports her finding
that Plaintiff was not under a disability as of April 2, 2011.
C. The ALJ’s Assessment of Dr. Gwan-Nulla’s Opinion is Supported by
Substantial Evidence
On September 16, 2011, one of Plaintiff’s treating physicians, Dr. Meesha Gwan-Nulla,
completed a Medical Source Statement form in which she opined that Plaintiff could lift less
than ten pounds occasionally, could stand and/or walk less than two hours in an eight-hour
workday, could sit for two to three hours at a time, and had limited pushing and pulling ability in
her upper extremities. On the form, next to the standing and walking limitation, she indicated
that Plaintiff “feels dizzy.” She also opined that due to Plaintiff’s breast cancer and COPD,
Plaintiff could never climb ramps or stairs and could occasionally balance, kneel, crouch, crawl,
and stoop. She also opined that Plaintiff had no manipulative, visual, or communicative
limitations. Finally, she found that Plaintiff was “limited” in her ability to deal with certain
environmental factors: temperature extremes, dust, humidity/wetness, hazards and “fumes, odors,
chemicals, gases.” Dr. Gwan-Nulla indicated that she agreed with Plaintiff’s disability onset date
of March 24, 2009. (Tr. 890-93). On April 12, 2012, Dr. Gwan-Nulla signed a copy of her
September 2011 opinion and wrote, “No additional comments.” (Tr. 1005-08).
“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)); Shontos v. Barnhart, 328 F.3d 418, 426
(8th Cir. 2003); Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000); 20 C.F.R. §§
9

404.1527(c)(2), 416.927(c)(2). Nonetheless, an ALJ may give lesser weight to a treating
physician’s opinion if this standard is not satisfied. Where it is not, this “means only that the
opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.” Social
Security Ruling 96-2p, 1996 WL 374118, at *4 (July 2, 1996). “Treating source medical
opinions are still entitled to deference and must be weighed using all of the factors provided in
20 C.F.R. 404.1527 and 416.927.” Id. These factors include the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, the evidence provided by the source in support of the opinion, the consistency of the
opinion with the record as a whole, the level of specialization of the source, and other relevant
factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). “When an ALJ discounts a treating
physician’s opinion, he should give good reasons for doing so.” Davidson v. Astrue, 501 F.3d
987, 990 (8th Cir. 2007); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will always
give good reasons in our notice of determination or decision for the weight we give your treating
source’s opinion.”).
Dr. Gwan-Nulla treated Plaintiff between August 3, 2011 and approximately April 4,
2012, and the ALJ properly recognized that she was a treating source. With respect to the period
beginning April 1, 2011, the ALJ gave her opinion “some weight” but did not give controlling
weight to all of her conclusions. (Tr. 25). Specifically, he found that some of her opinions
regarding Plaintiff’s ability to sit, stand, walk, lift, and climb stairs and ramps were not supported
by objective testing, clinical signs, or treatment sought by or offered to Plaintiff and were
inconsistent with Plaintiff’s own descriptions of her activities. (Tr. 25). That decision was
supported by substantial evidence in the record.

10

First, the treatment notes from Dr. Gwan-Nulla’s five visits with Plaintiff contain no
medical support for any of the limitations she imposed. (Tr. 1042-43, 1044, 1046-47, 1058-59,
1065-67). There is no indication in those notes that Plaintiff complained of any pain, weakness,
fatigue, shortness of breath, mobility problems, or other symptoms that would support Dr. GwanNulla’s limitations on Plaintiff’s ability to stand, sit, walk, lift, or climb stairs. Although Dr.
Gwan-Nulla indicated in her opinion that Plaintiff “feels dizzy,” which limits her ability to
standing and/or walk, the only mention of dizziness in her treatment notes is an August 2011
note that Plaintiff had had “dizziness in the past.” (Tr. 1043). Indeed, the record indicates that the
only symptoms Plaintiff complained of to Dr. Gwan-Nulla were related to sinus congestion in
October 2011, hot flashes in January 2012, and gastroesophageal reflux in April 2012. (Tr. 106566); otherwise, Plaintiff reported “doing well” (Tr. 1042, 1044). Dr. Gwan-Nulla conducted a
physical examination at each visit, and her physical findings at each of these visits were normal.
(Tr. 1043-44, 1046, 1058, 1066). Dr. Gwan-Nulla repeatedly diagnosed Plaintiff as having stable
COPD, prescribed medication for the COPD, and recommended that Plaintiff quit smoking, but
Dr. Gwan-Nulla did not identify any symptoms or functional limitations associated with
Plaintiff’s COPD. There is also no indication Dr. Gwan-Nulla ever observed Plaintiff having any
difficulty with mobility or any abnormalities in gait or posture. The fact that Dr. Gwan-Nulla’s
opinions contain limitations not reflected in her treatment notes supports the ALJ’s decision to
discount those opinions. See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (holding the
ALJ did not err in giving minimal weight to the report of a treating physician where the opinion
was conclusory and contained significant limitations not reflected in his treatment notes); Hogan
v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (affirming the ALJ’s decision to discount the opinion
of a treating physician where it contained limitations that “stand alone” and “were never

11

mentioned in [the physician’s] numerous records of treatment . . . nor [were] they supported by
any objective testing or reasoning which would indicate why the claimant’s functioning need be
so restricted”).
Second, records from Plaintiff’s other treatment providers in the period after April 2011
also provide little or no support for Dr. Gwan-Nulla’s opinions. Plaintiff saw her oncologist for
follow-up several times in 2011 following the conclusion of her chemotherapy in early 2011. (Tr.
702-08, 710-15, 1032-35, 1038-40, 1051-52). Plaintiff reported in April 2011 that she had “a bit
of tingling in the tips of her fingers,” and she reported in July 2011 that she had had some trouble
with asthma since the start of a heat wave and since starting to smoke a bit more. (Tr. 702, 710,
1032). Other than those complaints, however, Plaintiff generally indicated that she was “doing
well,” had “no constitutional complaints,” and was “not feeling poorly.” (Tr. 702, 710, 1032,
1038, 1051). Physical examinations were generally normal. (Tr. 703, 711-12, 1033, 1038-39,
1051-52). She frequently noted that her biggest concern was her financial situation. (Tr. 702,
710, 1032, 1038).
In addition, Plaintiff’s visits to her other doctors for treatment of her asthma, COPD,
breast cancer, and other conditions provide little support for Dr. Gwan-Nulla’s opinions. These
notes indicate that Plaintiff sometimes had chest pain, coughing, cold symptoms, shortness of
breath, and/or fatigue, and that in September 2011 she reported dizziness associated with the use
of one of her inhalers. (Tr. 990-91, 993-96, 1000-03, 1010, 1071-74, 1075-76, 1099). However,
these notes do not support the standing, walking, sitting, lifting, or climbing restrictions in Dr.
Gwan-Nulla’s opinions. Plaintiff stopped reporting dizziness after her doctor changed her inhaler
prescription in September 2011, and at visits in 2012 she specifically denied having dizziness.
(Tr. 991, 998, 1061, 1106). In September 2011, her doctor noted that her COPD was “mild to

12

moderate,” that it “has been occurring in a decreasing pattern for years” and that “the course has
been gradually improving.” (Tr. 993). At visits in July 2011 and January 2012, Plaintiff
specifically denied having difficulty breathing after exertion. (Tr. 991, 998). In late February
2012, Plaintiff went to the hospital for chest pain, but notes from that visit indicate that she had
stopped using her medications for more than a month. (Tr. 955). In April 2012, her doctor noted
that her COPD was “well controlled” on her medication. (Tr. 1066). In addition, at a May 2012
appointment, she rated her level of fatigue at “1/4.” (Tr. 1099). Her posture and gait were
consistently noted to be normal; her review of systems with regard to musculoskeletal
examinations was consistently unremarkable; and her chest, lung, and cardiovascular
examinations were generally normal when she was on her medication. (Tr. 991, 995, 998-99,
1062, 1077, 1106-07). She did not complain of weakness or mobility problems, and her doctors
did not suggest any that she had any mobility or activity restrictions during the relevant time
period.
Third, the ALJ properly noted that Dr. Gwan-Nulla’s opinion regarding Plaintiff’s limited
ability to stand and sit were inconsistent with Plaintiff’s own accounts of her activities. (Tr. 25).
See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (ALJ properly discounted treating
physician’s opinion where claimant testified that she regularly engaged in activities that
exceeded opined limitations). Contrary to Dr. Gwan-Nulla’s opinion that Plaintiff could stand or
walk for less than two hours in an eight-hour workday, Plaintiff testified that she could stand for
two hours at a time. (Tr. 50, 57). In addition, contrary to Dr. Gwan-Nulla’s opinion that Plaintiff
could sit for only two to three hours at a time, Plaintiff described her daily routine as involving
sitting down for “four hours.” (Tr. 55).

13

Finally, the Court notes that Dr. Gwan-Nulla’s opinion was given on a check-box form
and she offered no explanation for most of her conclusions. Indeed she left blank most of the
sections of the form on which she was asked to give such explanations. The conclusory nature of
Dr. Gwan-Nulla’s opinion entitles it to less weight. See Anderson, 696 F.3d at 794 (“[W]e have
recognized that a conclusory checkbox form has little evidentiary value when it cites no medical
evidence, and provides little to no elaboration.”) (quotation marks omitted).
D. The ALJ Properly Evaluated the Credibility of Plaintiff’s Subjective
Complaints
When evaluating the credibility of a plaintiff’s subjective complaints, the ALJ must
consider several factors: “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness,
and side effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s complaints.” Moore
v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009) (citing Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
2008) and Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). “‘An ALJ who rejects
subjective complaints must make an express credibility determination explaining the reason for
discrediting the complaints.’” Moore, 572 F.3d at 524 (quoting Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000)). However, the ALJ need not explicitly discuss each factor. Id. (citing Goff, 421
F.3d at 791). “If an ALJ explicitly discredits the claimant’s testimony and gives good reason for
doing so, [the court] will normally defer to the ALJ’s credibility determination.” Juszczyk v.
Astrue, 542 F.3d 626, 632 (8th Cir. 2008) (quotation marks and citation omitted).
Plaintiff testified that she has extreme fatigue and shortness of breath that require her to
spend most of the day sitting, lying down, or sleeping, and that she has pain and numbness in her
left side. The ALJ found these complaints only partially credible and found that Plaintiff was
14

capable of performing sedentary work with some additional restrictions. (Tr. 23-26). In doing so,
the ALJ conducted a proper credibility analysis in accordance with the factors discussed above.
First, the ALJ properly considered Plaintiff’s accounts of her daily activities, including
the fact that Plaintiff was able to help with household chores such as washing dishes, preparing
meals, and babysitting her niece. (Tr. 25, 56-58). While a claimant “need not prove she is
bedridden or completely helpless to be found disabled,” Reed v. Barnhart, 399 F.3d 917, 923
(8th Cir. 2005) (quotation marks omitted), Plaintiff’s daily activities can nonetheless be seen as
inconsistent with her subjective complaints of extreme fatigue and shortness of breath that would
prevent her from doing even sedentary work, and they may be considered in judging the
credibility of her complaints. See Wagner v. Astrue, 499 F.3d 842, 852-53 (8th Cir. 2007)
(finding a claimant’s accounts of “extensive daily activities, such as fixing meals, doing
housework, shopping for groceries, and visiting friends” supported the ALJ’s conclusion that his
complaints were not fully credible); Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007)
(finding that in assessing the credibility of complaints of tiredness and mental difficulties, the
ALJ properly considered the fact that the claimant took care of her eleven-year-old child, drove
her to school and did other driving, fixed simple meals, did housework, shopped for groceries,
and had no difficulty handling money).
Second, as discussed above with respect to Dr. Gwan-Nulla’s opinion, the ALJ properly
considered the fact that the objective and other medical evidence from after April 1, 2011 did not
support her claims of disabling fatigue and shortness of breath. (Tr. 23-25). This includes
objective testing showing that her breast cancer did not recur after April 1, 2011, evidence that
her physical examinations were generally normal when she was on medication; evidence that
Plaintiff frequently reported doing well and having no constitutional complaints; evidence that

15

Plaintiff sometimes denied fatigue and difficulty breathing; and evidence that Plaintiff’s COPD
improved with treatment. These were all proper factors in the credibility analysis. See Goff, 421
F.3d at 792 (holding that it was proper for the ALJ to consider unremarkable or mild objective
medical findings as one factor in assessing credibility of subjective complaints); Frederickson v.
Barnhart, 359 F.3d 972, 977 n.2 (8th Cir. 2004) (holding that the fact that the plaintiff had not
complained of severe pain to his treating physicians of symptoms undermined the credibility of
his reports of those symptoms); Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009)
(“Impairments that are controllable or amenable to treatment do not support a finding of
disability.”) (citing Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)); Renstrom v. Astrue,
680 F.3d 1057, 1066 (8th Cir. 2012) (finding the ALJ’s discussion of how the claimant’s
symptoms “improved with treatment” a proper factor in discounting the claimant’s credibility).
Fourth, the ALJ noted that Plaintiff continued to smoke throughout the relevant period,
despite her doctors’ repeated recommendations that she stop doing so. (Tr. 24, 955, 999, 1044,
1046, 1058, 1067, 1074, 1077). A claimant’s failure to stop smoking despite recommendations to
do so may weigh against the claimant’s credibility. See Wheeler v. Apfel, 224 F.3d 891, 895
(ALJ properly considered the claimant’s continued smoking despite directions to quit in
assessing the credibility of her asthma-related complaints); Choate v. Barnhart, 457 F.3d 865,
872 (8th Cir. 2006) (noting that an ALJ may properly consider noncompliance with a treating
physician’s directions, including a failure to quit smoking, in the credibility analysis).
In sum, the ALJ considered several of the relevant credibility factors, and her decision to
partially discount the credibility of Plaintiff’s subjective complaints is supported by substantial
evidence in the record. Therefore, the Court will defer to the ALJ’s credibility determination. See
Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (“This court will not substitute its opinion

16

for the ALJ’s who is in a better position to gauge credibility and resolve conflicts in evidence.”);
Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011); Juszczyk v. Astrue, 542 F.3d 626, 632 (8th
Cir. 2008).
E. The ALJ Properly Evaluated the Third-Party Reports From Plaintiff’s
Family Members
Plaintiff argues that the ALJ erred by failing to give proper weight to the third-party
reports of Plaintiff’s family members. In April 2010, Plaintiff’s niece filled out a Function
Report indicating that Plaintiff had fatigue and shortness of breath and had significant difficulty
with several activities, including standing, walking, climbing stairs, squatting, bending, seeing,
and completing tasks. (Tr. 286-93). In August 2010, Plaintiff’s aunt completed a form indicating
that Plaintiff could not walk more than two feet without getting out of breath and needing to sit
down, had panic attacks, could stand for only half an hour, and had difficulties sitting, lifting,
and performing household chores. (Tr. 308-10). The ALJ expressly discussed these reports in his
opinion and gave them “some weight” as to the period before April 1, 2011. (Tr. 19). However,
as to the period after April 1, 2011, he did not give significant weight because they had been
completed in 2010 and because they were not supported by the medical evidence after that date.
(Tr. 25-26). The ALJ also properly pointed out that Plaintiff’s family members were not
medically trained to make exacting observations and that they could not be considered
disinterested third parties. (Tr. 25-26). For these reasons and the reasons discussed above with
respect to the ALJ’s evaluation of Plaintiff’s own subjective complaints, the decision to give no
significant weight to these reports is supported by substantial evidence in the record.
F. The ALJ’s RFC Determination Is Supported by Substantial Evidence
Plaintiff argues that the RFC is not supported by substantial evidence because the ALJ
did not adequately take into consideration Plaintiff’s testimony regarding her symptoms; the
17

medical signs and findings in the record regarding Plaintiff’s pain, fatigue, and other symptoms;
and the environmental limitations in Dr. Gwan-Nulla’s opinion.
A claimant’s RFC is “the most a claimant can do despite [the claimant’s] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)). “The
ALJ must assess a claimant’s RFC based on all relevant, credible evidence in the record,
‘including the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
Plaintiff suggests that the ALJ failed to adequately consider her testimony and the
medical evidence regarding her fatigue, shortness of breath, cough, chest pain, and other
symptoms. The Court disagrees. The ALJ’s decision includes a detailed discussion of Plaintiff’s
testimony regarding her limitations and a proper analysis of why he found her testimony only
partially credible. The ALJ’s decision also includes a detailed discussion of the medical records
during the relevant time frame, including both positive and negative reports and objective
findings regarding Plaintiff’s lung condition and general condition. (Tr. 24-25). Although the
ALJ did not expressly mention every single report and finding in Plaintiff’s medical record, she
was not required to do so. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (noting that “an
ALJ is not required to discuss every piece of evidence submitted,” and “[a]n ALJ’s failure to cite
specific evidence does not indicate that such evidence was not considered”). Here, it is clear that
the ALJ considered the relevant evidence in assessing Plaintiff’s RFC.
Moreover, the medical evidence does not support limitations more severe than those
articulated in the RFC. As discussed at length above, Plaintiff frequently reported to her doctors
that she was doing well or had no constitutional symptoms, her physical examinations were

18

typically normal, her doctors did not indicate that she had significant fatigue or mobility
problems, and her doctors described her COPD as “mild to moderate,” “improving,” and “well
controlled” when she was on medication. These findings are consistent with the ALJ’s finding
that Plaintiff could perform sedentary work with additional postural and environmental
limitations. Cf. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (noting that a limitation to
sedentary work “in itself is a significant limitation”).
Plaintiff also argues that the ALJ erred by not including in the RFC all of the specific
environmental limitations described in Dr. Gwan-Nulla’s medical source statements. As stated
above, Dr. Gwan-Nulla opined that Plaintiff was “limited” in her ability to deal with temperature
extremes, dust, humidity/wetness, hazards, fumes, odors, chemicals, and gases. The Court agrees
with the Commissioner that the RFC accounts for the limitations in Dr. Gwan-Nulla’s opinion.
Dr. Gwan-Nulla did not specify that Plaintiff must avoid any exposure to the environmental
factors listed on the form, but only that she was “limited” in her ability to be exposed to those
factors. The statements in the RFC that Plaintiff “should avoid concentrated exposure to extreme
temperatures, wetness, and humidity” and “should avoid moderate exposure to irritants” (which
would include dust, fumes, odors, chemicals, and gases) adequately reflect Dr. Gwan-Nulla’s
opinion. Moreover, the record as a whole does not suggest that Plaintiff needs to avoid all
exposure to all pulmonary irritants. As the ALJ noted, Plaintiff continued to smoke cigarettes
throughout the relevant period. (Tr. 24, 1077, 1107). Despite this regular exposure to pulmonary
irritants, the record shows that her COPD was only “mild to moderate” and “well controlled” by
her medication. (Tr. 25, 993, 1066). The ALJ’s implicit finding that Plaintiff could tolerate some
exposure to irritants is supported by substantial evidence.

19

G. The ALJ Relied on a Proper Hypothetical Question Posed to the
Vocational Expert
Finally, Plaintiff argues that the hypothetical question the ALJ posed to the vocational
expert did not adequately include all of Plaintiff’s limitations. As discussed above, at Step Five,
the Commissioner bears the burden of establishing that the claimant maintains the RFC to
perform a significant number of jobs within the national economy. Pearsall, 274 F.3d at 1219.
“‘Testimony from a vocational expert is substantial evidence [in support of a finding at Step
Five] only when the testimony is based on a correctly phrased hypothetical question that captures
the concrete consequences of a claimant’s deficiencies.’” Collins v. Astrue, 648 F.3d 869, 872
(8th Cir. 2011) (quoting Cox v. Astrue, 495 F.3d 614, 620 (8th Cir. 2007)).
Plaintiff first alleges that the question posed to the vocational expert (the “VE”) did not
include Plaintiff’s limited ability to be exposed to irritants such as dust, gas, and fumes. She
argues that this is particularly significant because the VE testified that there was “some
exposure” to dust in the jobs she identified and that “if an individual had to avoid all exposure to
irritants,” then she could not do those jobs. (Tr. 65). The Court finds this argument without merit.
As discussed above, Dr. Gwan-Nulla did not find that Plaintiff must avoid “all” exposure to
irritants, but only that she was “limited” in her ability to be exposed to such irritants, and the ALJ
adequately accommodated this limitation by finding in the RFC that Plaintiff should avoid
“moderate exposure” to irritants. Consistent with that RFC, the ALJ posed a hypothetical
question to the VE describing an individual who must “avoid[] even moderate exposure to
irritants.” In response, the VE testified that such an individual could perform jobs such as hand
assembler and machine worker. (Tr. 62-64). Nothing in the VE’s testimony indicates that the
jobs she identified could not be performed by someone with Plaintiff’s RFC.

20

Second, Plaintiff alleges that the ALJ erred by including in the hypothetical question to
the VE that Plaintiff had a “high school education” without specifying that Plaintiff had received
special education services or specifying that her school records contained an IQ score of 65 from
1977. Again, the Court finds no merit in this argument. Plaintiff did have a high school
education. She did not allege in her application or her testimony that she was significantly
limited by her cognitive abilities, nor does anything in her extensive medical record suggest that
she was so limited. The ALJ noted that Plaintiff’s representative had requested that the ALJ
order IQ testing but that the ALJ had found it not warranted in light of the record. (Tr. 22).
Because the hypothetical question posed to the VE adequately captured the consequences
of Plaintiff’s impairments that were supported by the record, the response to that hypothetical
question constitutes substantial evidence to support the ALJ’s finding at Step Five. See Robson v.
Astrue, 526 F.3d 389, 393 (8th Cir. 2008) (finding substantial evidence supporting the ALJ’s
conclusion at Step Five where the ALJ’s hypothetical posed to the VE contained all of the
concrete consequences of the plaintiff’s physical deficiencies during the relevant time period).
VI.

CONCLUSION

For all of the foregoing reasons, the Court finds the ALJ’s decision is supported by
substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of March, 2015.

21