Lewis v. Colvin

Filing 27

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social Security benefits to Plaintiff is AFFIRMED. A separate judgment in accordance with this Memorandum and Order is entered this date. Signed by Magistrate Judge Patricia L. Cohen on November 15, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CURTIS M. LEWIS,

)
)
)
)
)
)
)
)
)
)

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

Case No. 2:15CV63 PLC

MEMORANDUM AND ORDER
Curtis Lewis (“Plaintiff”) seeks review of the decision of the Social Security
Commissioner, Carolyn Colvin, denying his application for Disability Insurance Benefits under
the Social Security Act. The parties consented to the exercise of authority by the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 9). Because the Court finds that
substantial evidence supports the decision to deny benefits, the Court affirms the denial of
Plaintiff’s application.
I.

Background and Procedural History

In May 2012, Plaintiff filed an application for Disability Insurance Benefits alleging he
was disabled as of July 1, 2007.1 (Tr. 230-41). The Social Security Administration (SSA)
denied Plaintiff’s claims, and he filed a timely request for a hearing before an administrative law
judge. (Tr. 168-72, 175-76). The SSA granted Plaintiff’s request for review and conducted a
hearing on November 13, 2013. (Tr.132-53). In a decision dated February 12, 2014, the ALJ
found that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time
1

Plaintiff previously applied for Disability Insurance Benefits in March 2008. (Tr. 160). The
SSA dismissed Plaintiff’s case after he failed to appear at the administrative hearing. (Tr. 15758).
1

through June 30, 2011, the date last insured.” (Tr. 28). Plaintiff requested review of the ALJ’s
decision and submitted additional evidence to the SSA Appeals Council, which denied Plaintiff’s
request for review. (Tr. 307-10, 1-3). Plaintiff has exhausted all administrative remedies, and
the ALJ’s decision stands as the Commissioner’s final decision. Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
II.

Evidence Before the ALJ

A. ALJ Hearing
Plaintiff appeared with counsel at the administrative hearing on November 13, 2013. (Tr.
132). Plaintiff stated that he was born in 1982, had a GED, and lived with his wife and two
children. (Tr. 134). Plaintiff testified that he suffered the following impairments: back, neck,
and shoulder problems; wrist issues; depression and anxiety; high blood pressure; and
fibromyalgia.

(Tr. 135).

He was currently taking cyclobenzaprine, Xanax, hydrocodone,

Fentanyl, citalopram, Adderall, and gabapentin. (Tr. 135-36). Plaintiff stated that he saw Dr.
Goldman once a month for depression. (Tr. 136).
In regard to his back pain, Plaintiff testified that his pain level was a nine on a ten-point
scale, and it radiated into his legs, causing them to “go numb.” (Tr. 137, 144). The radiating
pain occurred “[o]ff and on all day.” (Tr. 144). His most recent visit to the emergency room for
back pain was “[a]bout a month ago.” (Tr. 137). Plaintiff rated his neck pain at an eight, and
stated that it radiated to the top of his head. (Tr. 138, 145). Plaintiff’s neck pain was also “pretty
consistent off and on all day.” (Tr.145).
Plaintiff testified that he could: walk approximately one and a half blocks before needing
to sit and rest; stand in place for five to ten minutes; and lift five to ten pounds. (Tr. 138-39).
Due to problems with his wrists, Plaintiff tended to drop things, such as his coffee mug and

2

cigarettes.2 (Tr. 139). Additionally, “if I’m talking on the phone it – within five minutes my arm
will go numb.”
Plaintiff explained that, on a typical day, he would “just stay around the house and try to
nap and relax and keep my muscles from tensing up. Seems like if I try to do a lot, then it really
puts me down and [sic] where I’m bedridden.” (Tr. 140). He napped one to three times per day
for approximately thirty minutes. (Id.). Plaintiff took medication to help him sleep at night. (Tr.
141). To control his pain, he used a heating pad two times per day for thirty to forty-five
minutes. (Tr. 142). Plaintiff stated that his wife helped him dress and get in and out of the
shower. (Tr. 139). Plaintiff had a driver’s license and was able to drive. (Id.).
In regard to his mental impairments, Plaintiff stated that he was diagnosed with bipolar
disorder and ADHD. (Tr. 142, 144). Plaintiff experienced “manic” episodes, which lasted one
to three days, about four times per month. (Tr. 142-43). During these times, Plaintiff was
“[v]ery hateful and saying things I probably shouldn’t.” (Tr. 143). Plaintiff also suffered panic
attacks “at least probably six times a month,” but, when he took his medicine, “[i]t’ll smooth me
out enough that I’m not freaking out.” (Id.). As a result of his ADHD, Plaintiff had “trouble
focusing and staying on task.” (Tr. 144). For example, when helping his third-grade daughter
with her homework, “I’ll get frustrated” and “even if I read the instructions, I can’t comprehend
it.” (Id.).
Vocational expert James Lanier also testified at the hearing. (Tr. 146). Mr. Lanier
testified that Plaintiff previously worked as a cook, order filler, and roofer. (Tr. 148). The ALJ
asked Mr. Lanier to consider a hypothetical individual with: Plaintiff’s age, education, and work
experience; ability to perform sedentary work with a sit/stand option; limitations to occasional
2

Plaintiff later testified that he had switched from cigarettes to an electronic cigarette
approximately thirteen months ago. (Tr. 144).
3

overhead reaching with the left extremity and occasional handling and fingering; ability to
perform “simple” work defined as “routine, and repetitive tasks with no strict production quota,
with the emphasis being on a per-shift rather than a per-hour basis”; and limitations to occasional
interaction with the public and coworkers. (Tr. 148-49). Mr. Lanier testified that such individual
could not perform Plaintiff’s past work, but could work as a document preparer, call-out
operator, or circuit board touchup screen assembler.

(Tr. 149).

The following additional

limitations on the hypothetical individual would preclude work at all exertional levels: being off
task fifteen percent of the day or greater in addition to regularly scheduled breaks; two or more
unexcused or unscheduled absences per month on a continuing basis; or two or more unexcused
or unscheduled breaks per workday. (Tr. 150-51). Likewise, if such individual “is not able to
carry on in a normal [or appropriate] fashion,” then he would “eventually be terminated.” (Tr.
152).
B. Relevant medical records
1. Prior to June 30, 2011, the date last insured.
On September 28, 2008 Plaintiff saw his primary care physician, Dr. John Memken for
medication management. (Tr. 382). Plaintiff reported that “everything is just pretty much about
the same,” and Dr. Memken continued Plaintiff on Cymbalta. (Tr. 382). Plaintiff saw his
rheumatologist, Dr. Imeda Cabalar the same day. (Tr. 383). Plaintiff was taking Vicodin and
Flexeril for his degenerative disc disease, and he informed Dr. Cabalar that “he still has diffuse
muscle pain but better compared to before.” (Id.).
Plaintiff returned to Dr. Memken’s office on October 27, 2009, after “an extremely long
hiatus.” (Tr. 385). Plaintiff informed Dr. Memken that he had been seeing Dr. Lieb for pain

4

medicine.3 (Id.). Plaintiff reported that, about one week prior, he was standing up and riding on
the back of a four-wheeler when it was intentionally struck by a pick-up truck, causing Plaintiff
to sustain an acute injury to his back. (Id.). Dr. Memken “admonished the patient” and agreed to
prescribe a limited supply of hydrocodone, but warned that “I am not going to give him any more
pain medicine, and I am going to communicate with Dr. Lieb about this.” (Id.).
On January 25, 2010, Plaintiff went to the emergency room for vomiting caused by pain
in his head. (Tr. 355). Plaintiff also stated that his neck and back had been hurting since the
four-wheeler accident about two months prior.

(Id.).

Doctors administered intravenous

medications, ordered a CT scan and x-rays, and prescribed Ultram. (Id.). Plaintiff’s head CT
and chest x-ray were normal, while the x-rays of his thoracic spine revealed “slight loss of
vertebral body heights in the mid thoracic region.” (Tr. 364-65). Plaintiff followed up with Dr.
Memken on January 29, 2010, and reported “exacerbation of all of his symptoms.” (Tr. 387).
Plaintiff stated that he was “smoking cigarettes like crazy” and “even…used a little controlled
substance because he was so tensed up.” (Id.). Dr. Memken offered to refer Plaintiff to Dr.
Luvell Glanton for pain management. (Id.).
On March 10, 2010, Plaintiff called Dr. Memken requesting a refill on his hydrocodone
because “Dr. Glanton would not fill this for him, and he does not want to go back down to Dr.
Lieb.” (Tr. 388). Dr. Memken prescribed 100 hydrocodone. (Tr. 388).
Plaintiff returned to Dr. Memken’s office on November 3, 2010 “with a derangement to
his left shoulder which occurred about 3 months ago” when he “tripped getting out of the
truck[.]” (Tr. 389). Plaintiff was experiencing “numbness and tingling in both of his arms and
he is having a big popping sensation and pain in his left shoulder.” (Tr. 389). Dr. Memken
3

Despite numerous references to Dr. Lieb, the record contains no documentation evidencing Dr.
Lieb’s treatment of Plaintiff.
5

observed “what appears to be almost complete dislocation of his scapula with a huge step off,
dramatic winging in the back,” and ordered an MRI scan. (Id.). The MRI revealed “[p]artial
tears of the supra- and infraspinatus tendons” and “[m]ild acromioclavicular joint osteoarthritis.”
(Tr. 379). An MRI of Plaintiff’s cervical spine, taken on February 25, 2011, revealed “small disc
bulge at C6-C7 without significant canal or foraminal narrowing.” (Tr. 347).
2. After the June 30, 2011 date last insured.
Plaintiff visited Dr. Memken on July 1, 2011 after “an episode yesterday of some
vomiting of blood.” (Tr. 391). Plaintiff explained that “he was working out in the heat” and
became overheated. (Id.). Dr. Memken noted: “[Plaintiff] said that he is extremely nervous. He
has been working for Kevin Lionberger. He says that Kevin just has him doing all kinds of
things and is keeping him on edge all the time.” (Id.). Dr. Memken prescribed lorazepam and
ordered CT scans of his abdomen and pelvis, which were unremarkable. (Tr. 391, 378).
When Plaintiff followed up with Dr. Memken on July 13, 2011, he was “doing fine” but
continued “to have his low down abdominal pain.” (Tr. 392). Plaintiff informed Dr. Memken
that “[h]e is not working much at all, because he feels that this is just stressing him out too
much.” (Id.). Dr. Memken reviewed Plaintiff’s CT scan, which showed Plaintiff was missing
his right kidney but revealed no other abnormalities. (Id.). Dr. Memken referred Plaintiff to Dr.
Katbamna for a colonoscopy, but Plaintiff did not present for that appointment. (Tr. 392).
On September 9, 2011, Plaintiff visited Dr. Memken due to “gravel in his eye.” (Tr.
393). Plaintiff “was working on remodeling a house and evidently was doing some chipping on
a floor and some debris flew up striking him in his right eye.” (Id.). On September 21, 2011,
Plaintiff saw Dr. Memken for shoulder pain. (Tr. 394). Dr. Memken diagnosed rotator cuff
syndrome and administered injections of lidocaine and Celestone. (Id.).

6

After a motor vehicle accident on December 29, 2011, Plaintiff arrived at the emergency
room by ambulance reporting abdominal and lower back pain. (Tr. 328). CT scans of his head,
spine, and chest were normal. (Tr. 334-38).
On May 3, 2012, Dr. Memken refilled Plaintiff’s hydrocodone-acetaminophen and
lorazepam and prescribed Duragesic patches. (Tr. 396). Dr. Memken noted that Plaintiff was a
“[c]urrent everyday smoker.” (Tr. 396). Plaintiff informed Dr. Memken that he “made a trip
down to St. Louis,” and “[t]hey told him that there is nothing they could do for his spine, other
than completely fuse it, which would kind of immobilize his spine kind of badly. They have
predicted that he will continue to deteriorate and will be completely an invalid and in a
wheelchair within five years, which kind of depressed him.” (Tr. 397).
Plaintiff returned to Dr. Memken’s office on June 4, 2012. (Tr. 398). Plaintiff’s wife
accompanied him and informed Dr. Memken that Plaintiff was “having trouble accepting his
diagnosis, which is terminal back syndrome, and cannot accept the fact that he will never be able
to work for the rest of his life.”

(Id.).

Dr. Memken refilled Plaintiff’s hydrocodone-

acetaminophen, increased his Duragesic patches, and prescribed Citalopram. (Id.).
On June 6, 2012, Plaintiff saw Dr. Theodore Choma in regard to his back condition. (Tr.
441).

Dr. Choma noted that he had previously diagnosed Plaintiff with multilevel disc

degeneration and had treated him with an epidural steroid injection, “which gave him some
relief.” (Id.). Plaintiff stated that he had recently undergone shoulder surgery and “was referred
back to me for evaluation of his arm numbness.” (Tr. 442). Dr. Choma ordered Plaintiff an
epidural steroid injection, referred him to a neurologist, and “strongly counseled smoking
cessation.” (Id.). An x-ray of Plaintiff’s cervical spine revealed “no significant disc space
narrowing” but “suggest[ed] at least slight prominence of soft tissues [sic] the adenoidal region.”

7

(Tr. 443). Plaintiff “stated that his symptoms were improved immediately post [injection].” (Tr.
447).
Dr. Goldman completed a psychiatric evaluation for Plaintiff on June 12, 2012. (Tr.
409). Dr. Goldman observed that Plaintiff, who presented with his wife, was “adequately
groomed,” “polite and cooperative,” “maintained good eye contact throughout the interview,”
and was “spontaneously conversant.” (Id.). Dr. Goldman also noted that Plaintiff “demonstrated
a mild processing delay” and “displayed some body movements that were mildly jerky and
almost tic like.” (Id.). Plaintiff informed Dr. Goldman that, while he no longer drank, he had a
history of alcohol abuse, including two DUIs, and was “currently smoking three packs per day.”
(Tr. 409, 432). Plaintiff complained of difficulty sleeping, poor memory and concentration, lack
of appetite, low energy, and mood swings. (Tr. 410). Dr. Goldman diagnosed Plaintiff with
“bipolar disorder type I, most recent episode depressed, moderate” and “anxiety disorder/social
phobia,” and he prescribed Saphris. (Tr. 410-11).
Plaintiff met with his community support specialist, Josh Smith, for two hours on June
22, 2012, to “assess his mood and situation.” (Tr. 430). Plaintiff reported that he was “still
somewhat agitated,” but “overall he has noticed a significant improvement” and the medication
had “helped considerably” in reducing his “anger outbursts.”

(Id.).

Mr. Smith noted that

Plaintiff “has to deal with the fact that he is unable to work as much as he once did due to his
degenerative back disease . . . .” (Id.).
On June 26, 2012, Plaintiff presented to Dr. Miguel Chuquilin, a neurologist, for
treatment of the numbness in his hands. (Tr. 448). Plaintiff stated he quit smoking two weeks
ago. (Tr. 450). Dr. Chuquilin ordered an EMG nerve conduction study to determine the cause of

8

the numbness. (Tr. 451). The EMG study revealed “mild to moderate right median neuropathy
at the wrist.” (Tr. 452-53).
Plaintiff returned to Dr. Goldman on June 28, 2016 and stated that he was “doing better”
with his medications, but felt “hungover when I first get up.” (Tr. 408). In a session with the
support specialist, Mr. Smith, on July 9, 2012, Plaintiff reported that he was “doing well” overall
and “doing better in regards to not blowing up or becoming overly angry.” (Tr. 429). Plaintiff
informed Mr. Smith that he had “been able to do small jobs and look at expanding some business
options [with his brother-in-law] as a way to keep busy and look at generating some degree of
income that will assist him.” (Id.).
Dr. Barbara Markway, a state agency psychological consultant, completed a psychiatric
review technique for Plaintiff on July 6, 2012. (Tr. 161-63). Dr. Markway diagnosed Plaintiff
with an affective disorder but, because Plaintiff had failed to complete a function report, she
found there was insufficient evidence to evaluate the effect of his impairment on his activities of
daily living, social functioning, or concentration, persistence or pace. (Tr. 162).
In a visit with Dr. Goldman on July 25, 2012, Plaintiff’s wife stated that he was
“severely, severely, severely depressed,” and Dr. Goldman adjusted Plaintiff’s dosage of Saphris.
(Tr. 407). Plaintiff spoke to Mr. Smith by telephone on August 1, 2012 and reported that “his
medications are effective for him at this time….he has been exploding less and feels the
medication is effective with fewer side effects at this time.” (Tr. 427). Plaintiff also informed
Mr. Smith that he “continues to experience a great deal of back pain but has been able to keep
busy with his brother-in-law in various activities.” (Id.).
Plaintiff saw Dr. Memken for back pain on August 7, 2012. (Tr. 572). Plaintiff informed
Dr. Memken that “the Duragesic is working good, but it made him way too moody…and he just

9

felt like he needed to get off of it.” (Id.). Dr. Memken switched Plaintiff to a Lidoderm patch.
(Id.).
On August 9, 2012, Plaintiff visited Dr. David Volgas for treatment of his bilateral hand
numbness. (Tr. 457). Dr. Volgas diagnosed Plaintiff with mild to moderate carpal tunnel
syndrome and prescribed night splints and gabapentin. (Tr. 458-59).
In a meeting with Mr. Smith on August 10, 2012, Plaintiff informed him that his “mood
was mostly stable, but that his pain in his back has increased and this has in turn increased his
irritability[.]” (Tr. 425). On August 24, 2012, Mr. Smith noted that Plaintiff continued to
experience depression and chronic back pain. (Tr. 423). The same day, Plaintiff presented to
Dr. Memken with a sore throat and lower back pain. (Tr. 574). Dr. Memken observed that
Plaintiff had resumed smoking and had not filled Dr. Volgas’s gabapentin prescription. (Tr.
575). Although Dr. Memken agreed to prescribe Vicodin, Plaintiff “was kind of insinuating that
he absolutely needed something stronger to just take the edge off the pain a little bit because he
was really suffering.” (Id.). Dr. Memken refused to prescribe anything stronger and urged
Plaintiff to start the gabapentin. (Id.).
On September 5, 2012, Plaintiff and his wife saw Dr. Goldman, and Plaintiff’s wife
informed Dr. Goldman that she “tapered him off the meds [because] they weren’t helping at all.”
(Tr. 406). Plaintiff complained of racing thoughts and low energy. (Id.).
prescribed cyclobenzaprine. (Id.).

Dr. Goldman

At an appointment with Dr. Memken the following day,

Plaintiff complained that he was “at his wits ends” because his “back is killing him.” (Tr. 576).
Plaintiff believed the gabapentin had helped him, but he stopped taking it due to an allergic
reaction. (Id.). Dr. Memken referred Plaintiff to Dr. Glanton for pain management and Dr.

10

Ronholm for a rheumatology evaluation. (Tr. 577). Plaintiff did not keep his appointment with
Dr. Ronholm on December 10, 2012. (Id.).
Also on September 6, 2012, Plaintiff presented to the emergency room with a broken
tooth and vomiting. (Tr. 487-98). Doctors administered a morphine IV and, upon discharge,
prescribed Percocet, clindamycin, and Zofran. (Tr. 491). On September 7, 2012, Plaintiff told
Mr. Smith that “his medications continue to fluctuate with their effectiveness” and he “seems to
suffer from a lot of side effects.” (Tr. 421).
Plaintiff returned to the emergency room for dental pain on September 14, 2012. (Tr.
475-86). Plaintiff stated that he had two teeth pulled earlier in the week and “started having
worse pain today, headache throbbing, rating 8/10.” (Tr. 475). The hospital physician found no
sign of infection or dry socket, and he prescribed Percocet. (Tr. 478). The doctor noted: “Pt
was upset we are offering him PO meds only. As he has normal vitals and was in no distress
until he was told he wouldn’t be getting morphine, I am concerned for drug seeking behavior.”
(Tr. 479). The same day, Plaintiff met with Mr. Smith and informed him that “he has had some
luck with his current medication and recently had a tooth pulled which has helped with pain.”
(Tr. 419).
Plaintiff saw Dr. Glanton for pain management on September 24, 2012. (Tr. 599-602).
Dr. Glanton diagnosed Plaintiff with degenerative disc disease, lumbosacral; thoracic disc
disease; and myalgia and myositis. (Tr. 602). Dr. Glanton noted that Plaintiff smoked one pack
of cigarettes per day. (Tr. 601). He ordered x-rays of Plaintiff’s spine and a TENS trial, and he
scheduled a follow-up appointment in two weeks. (Tr. 602).
In appointments with Mr. Smith on October 5 and 19, 2012, Plaintiff complained of
continued back pain and depression. (Tr. 526, 524). At an appointment with Dr. Goldman on

11

October 29, 2012, Plaintiff’s wife complained that Plaintiff “can’t focus on anything long
enough to do anything.” (Tr. 505). Plaintiff reported that the Saphris “helps him control his
mood. He’s not so snappy.” (Id.). Dr. Goldman prescribed Adderall for Plaintiff’s memory and
concentration. (Id.). The same day, Plaintiff informed Mr. Smith that he “is doing fair at this
time,” “continues to have little success with medication,” and is “frustrated with the lack of relief
from the back pain.” (Tr. 522).
On November 1, 2012, Plaintiff told Mr. Smith he was “doing a little better.” (Tr. 520).
Plaintiff reported that the Adderall “is working okay,” “his anger has been relatively stable,” he
“has less back pain at this time and that has help[ed] him remain calm,” and “his depression is
present but has improved slightly.” (Id.). On November 14, 2012, Plaintiff informed Mr. Smith
he was “doing fair,” but was experiencing “some mild side effects[,] such as fatigue,” from his
medications. (Tr. 518).
In a medical source statement (MSS) dated November 30, 2012, Dr. Goldman noted that
Plaintiff had ADHD and “marked impairment in focus, concentration, and memory.” (Tr. 53).
In addition, he wrote that Plaintiff’s “[a]bility to focus, concentrate, remember and carry out
instructions are dramatically impaired by his social phobia/anxiety [illegible word] mood
instability” and that Plaintiff suffered “severe chronic physical pain that exacerbates his
underlying psychiatric issues.” (Tr. 53-54). Dr. Goldman found that Plaintiff was: moderately
impaired in his ability to understand and remember simple instructions; markedly impaired in his
abilities to make simple work-related decisions and understand and remember complex
instructions; and extremely impaired in his abilities to carry out simple and complex instructions
and make complex, work-related decisions. (Tr. 53). In regard to Plaintiff’s ability to interact
with others, Dr. Goldman found that Plaintiff was: markedly impaired in his ability to interact

12

appropriately with the pubic and co-workers; and extremely impaired in his ability to interact
appropriately with supervisors and respond appropriately to usual work situations and changes in
routine. (Tr. 54).
On December 19, 2012, Plaintiff sought treatment from Dr. Choma for his “intermittent
chronic low back pain.” (Tr. 460-61). Plaintiff informed Dr. Choma that, over the last few
months, he had been experiencing “episodic low back pain and spasm, not simply confined to the
lumbosacral region, but throughout the lumbar region.” (Tr. 460). Plaintiff reported that he had
stopped smoking. (Id.). Dr. Choma counseled Plaintiff as follows: “I have explained to him
that he is experiencing the known natural history of this [degenerative] process. I have assured
him that this is not dangerous, although it can be intermittently quite painful. . . . Given its
diffuse nature, this is not likely amenable to surgical intervention.” (Tr. 461). Dr. Choma
ordered x-rays and an interlaminal epidural steroid injection. (Tr. 461-68).
During an appointment with Dr. Goldman on December 27, 2012, Plaintiff reported that
he “was doing real good then yesterday I fell on the ice and set off my shoulder.” (Tr. 503).
Plaintiff also stated the Adderall was “helping a lot,” and Dr. Goldman increased the dosage.
(Id.).
Dr. Choma completed a MSS for Plaintiff on January 14, 2013 (Tr. 470-72). Dr. Choma
noted the following limitations: lifting/carrying 20 pounds, standing/walking six hours per eighthour workday, and sitting less than six hours per eight-hour day. (Tr. 470-71). Dr. Choma also
stated that Plaintiff’s ability to push/pull was limited in his lower extremities. (Tr. 471). In
regard to postural limitations, Dr. Choma found that Plaintiff could occasionally climb, balance,
kneel, crouch, crawl, and stoop.

(Id.).

Dr. Choma recorded no manipulative,

visual/communicative, or environmental limitations. (Tr. 472).

13

In meetings with Mr. Smith on January 22, 2013 and February 5, 2013, Plaintiff stated
that he was doing “fairly well.” (Tr. 514-15, 512-13). On February 13, 2013, Plaintiff informed
Dr. Goldman that he was depressed after his mother’s boyfriend died, but “I think I’m doing fine
now.” (Tr. 502). Plaintiff also stated that, the previous day, he “stepped into a hole in the
ground, twisted my ankle and fell,” but otherwise, “I think everything’s been going very well.”
(Id.). Plaintiff again informed Mr. Smith that he was “doing fairly well” on March 7, 2013. (Tr.
510). Plaintiff stated that his anger was improved, but not resolved, and he continued to suffer
pain in his shoulders and lower back. (Id.).
On April 2, 2013, Dr. Matthew Smith at the UMC Orthopaedic Clinic examined
Plaintiff’s left shoulder. (Tr. 581-82). Dr. Smith noted that Plaintiff underwent arthroscopy
about one year earlier but was now experiencing “pain around his left side of his neck, some
headaches, burning pain into his left scapula.” (Tr. 581). Dr. Smith ordered x-rays and an MRI.
(Tr. 582).

The x-ray of Plaintiff’s shoulder revealed “[s]light further decrease in the

glenohumeral joint space without other new findings.”

(Tr. 583).

The MRI showed the

following: C6-7 mild to moderate central canal and mild bilateral foraminal stenosis secondary
to a disc herniation and degenerative disease; C3-4, C4-5, C5-6 mild central canal stenosis
secondary to degenerative disease and a congenitally small central canal; and sphenoid sinus
disease. (Tr. 584-85).
Plaintiff met with Mr. Smith on April 5, 2013 and April 19, 2013. (Tr. 508-09, 506-07).
At the latter appointment, Plaintiff reported “he had been feeling well until yesterday” and his
“depression had increased.” (Tr. 506). Plaintiff acknowledged that he “needs to stop pushing
himself with physical activities at this time.” (Id.).

14

In a progress note dated May 3, 2013, Mr. Smith stated that Plaintiff was “feeling fair”
but “admit[ted] that his depression has been increasing since he had his last MRI results” and “he
has a short fuse due to the chronic pain and numbness he feels.” (Tr. 121-24). Mr. Smith wrote:
“[Plaintiff] has improved greatly with remaining medication compliant and states [his] current
medications from Dr. Goldman are doing well for him at this time.” (Tr. 123). Plaintiff also
reported that, despite his back pain, “he has taken on a small job to assist with money that will
not hurt his back to a large degree.” (Id.).
Plaintiff returned to Dr. Choma on May 15, 2013. (Tr. 586-87). Dr. Choma “explained
[to] him that in the absence of any neurological compression, there really is no surgical option
for him.” (Tr. 587).
On May 17, 2013, Plaintiff informed Mr. Smith that he was “very disappointed” because
Dr. Choma could not help him at this time. (Tr. 119). On May 24, 2013, Plaintiff reported to
Mr. Smith that he was “feeling some improvement at this time with his mood.” (Tr. 113-16).
On June 14, 2013, Plaintiff informed Mr. Smith that he was “doing fair” and “his back is feeling
a little bit better.” (Tr. 109-11).
On July 9, 2013, Plaintiff presented to the emergency room with abdominal pain. (Tr.
530-62). The hospital staff ordered a CT of his abdomen and pelvis, which revealed “no acute
CT findings of the abdomen/pelvis. Nonobstructing left nephrolithiasis.” (Tr. 555). Plaintiff
returned to the emergency room on October 8, 2013, for treatment of neck and back pain after
falling down two flights of stairs. (Tr. 591-98). The emergency room doctor diagnosed Plaintiff
with a contusion and cervical strain, but did not prescribe medication because Plaintiff was
already taking hydrocodone four times per day. (Tr. 596).

15

When Plaintiff saw Mr. Smith on October 4, 2013, he reported “he had been doing well
with his mood and his back pain until he had a motorcycle accident. Client states he wrecked his
bike and hurt his back at that time. . . .[T]his had increased his pain and his irritability.” (Tr.
107).
Plaintiff and his wife met with Dr. Goldman on November 6, 2013. (Tr. 125-28).
Plaintiff reported that he had been off his medication for at least one month because he had lost
his Medicaid coverage. (Tr. 125). Based on the November 6, 2013 session, Dr. Goldman
completed an updated MSS for Plaintiff. (Tr. 56-57). Dr. Goldman stated that, since completing
the November 2012 MSS, Plaintiff’s impairments had worsened so that he was: markedly
impaired in his ability to understand and remember simple instructions; extremely impaired in all
other areas of decision-making, understanding, remembering, and following instructions; and
extremely impaired in all areas of social interaction. (Id.).
On February 13, 2014, a social worker at Mark Twain Behavioral Health completed a
Psychosocial/Clinical Assessment based upon an interview with Plaintiff, discussion with Mr.
Smith, and review of Plaintiff’s treatment records.

(Tr. 82-98).

Plaintiff was taking

hydrocodone, Adderall, and alprazolam, and he stated that “the symptoms he has are fairly well
maintained presently by the medications he’s on.” (Tr. 85). The social worker rated Plaintiff’s
GAF at 43 and wrote: “His affect is bland. His mood is dysthymic. . . . His thoughts were clear
and goal directed. He was oriented to person, place, time and situation. His memory both recent
and remote was fair. His concentration was fair. He does have problems with decreased
energy.” (Id.). Additionally, Plaintiff reported that “at times he struggles with feelings of
hopelessness and worthlessness because of his chronic physical health issues which prevent him
from working,” but he believed the medications “help[ed] him control his temper better.” (Id.).

16

On February 24, 2014, Mr. Smith completed a treatment plan for Plaintiff, which Dr.
Goldman signed. (Tr. 60-67). According to the treatment plan, Plaintiff’s had: a GAF score of
43; extreme occupational problems; and moderate problems with social network, family, and
daily living skills. (Tr. 61).
III.

Standards for Determining Disability Under the Act

Eligibility for disability benefits under the Act requires a claimant to demonstrate that he
or she suffers from a physical or mental disability. 42 U.S.C. § 423(a)(1). The Act defines
disability as “the inability to do 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 not less than 12 months.” 20 C.F.R.
§§ 404.1505(a), 416.905(a). 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 . . . .” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. Those steps require a claimant to
show that he or she:

(1) is not engaged in substantial gainful activity; (2) has a severe

impairment or combination of impairments which significantly limits his or her physical or
mental ability to do basic work activities or (3) has an impairment which meets or exceeds one of
the impairments listed in 20 C.F.R., Subpart P, Appendix 1; (4) is unable to return to his or her
past relevant work; and (5) the impairments prevent him or her from doing any other work. Id.
IV.

The ALJ’s Determination

17

As an initial matter, the ALJ determined Plaintiff’s date last insured. (Tr. 13). The ALJ
explained that, according to Plaintiff’s earnings records, Plaintiff had “acquired sufficient
quarters of coverage to remain insured through June 30, 2011,” and Plaintiff therefore “must
establish disability on or before that date in order to be entitled to a period of disability and
disability insurance benefits.” (Id.). Additionally, because Plaintiff filed his application for
Social Security disability insurance benefits on May 29, 2012, he had to prove that he was
disabled within the preceding one-year period, or the time period beginning May 29, 2011. (Id.).
The ALJ therefore determined that, to demonstrate he was entitled to Social Security benefits,
Plaintiff must prove that he was “under a disability within the meaning of the Social Security Act
from May 29, 2011, one year back in time from the May 29, 2012 protective filing date, through
the June 30, 2011 date last insured.” (Id.).
The ALJ proceeded to apply the five-step evaluation process set forth in 20 C.F.R. §
404.1520 and found that Plaintiff: (1) did not engage in substantial gainful activity prior to June
30, 2011, the date last insured4; (2) had the severe impairments of disorder of the back, left
shoulder degenerative joint disease, right upper extremity neuropathy, attention deficit
hyperactivity disorder, depression, and anxiety; (3) had the non-severe impairments of substance
abuse, absent right kidney, and kidney stones; and (4) did not have an impairment or
combination of impairments that met or medically equaled the severity of the listed impairments
in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 15-16).
In regard to Plaintiff’s mental impairments, the ALJ noted that Plaintiff failed to file the
function report required by the SSA. (Tr. 18). Nevertheless, the ALJ found that Plaintiff had
4

The ALJ noted that the record contained evidence that Plaintiff was working “off the books” in
2011 and 2012. (Tr. 15). However, the ALJ declined to determine whether that work constituted
substantial gainful employment because “there exists a valid basis for denying the claimant’s
application[.]” (Id.).
18

mild restrictions in activities of daily living, moderate difficulties in social functioning, and
moderate difficulties in concentration, persistence, or pace. (Id.). The ALJ found that, through
Plaintiff’s date last insured, he retained the residual functional capacity (RFC) to perform a range
of sedentary work with the following limitations:
a sit/stand option allowing the claimant to sit or stand alternatively at will
providing that he is not off task more than 10% of the work period. The
claimant cannot climb ladders, ropes or scaffolds, but can occasionally climb
ramps and stairs. He can occasionally stoop, crouch, kneel and crawl. He can
occasionally reach overhead with the left upper extremity.
He can
occasionally handle objects (gross manipulation) and finger objects (fine
manipulation of items no smaller than the size of a paper clip) with his right
upper extremity. He must avoid all use of hazardous machinery meaning
unshielded moving machinery. He must avoid all exposure to unprotected
heights. The claimant is limited to simple, routine and repetitive tasks, as
defined in the Dictionary of Occupational Titles as SVP levels 1 and 2, without
strict production quotas (i.e., with an emphasis on a per shift rather than a per
hour basis). He is limited to occasional interaction with the general public. He
can work around co-workers throughout the day, but with only occasional
interaction with those co-workers.
(Id.).
The ALJ recounted Plaintiff’s testimony that he was thirty-one years old and “had been
unable to perform work activity since July 1, 2007 due to back pain radiating to his lower
extremities along with neck, left shoulder and right wrist pain.” (Tr. 19). Plaintiff also testified
that he was unable to lift more than ten pounds with both hands, walk more than half a block, sit
more than five minutes, or stand more than ten minutes. (Tr. 19-20). Although the ALJ found
that Plaintiff’s “medically determinable impairments could reasonably be expected to cause
some of the alleged symptoms,” he concluded that Plaintiff’s statements regarding “the intensity,
persistence and limiting effects of these symptoms are not entirely credible[.]” (Tr. 20).
In regard to Plaintiff’s credibility, the ALJ found Plaintiff’s testimony “inconsistent and
exaggerated” and stated that his “characterization of pain was not consistent with the medical
records and tests[.]” (Tr. 20). For example, although his earnings records reflected no earnings
19

in 2011 and 2012, Plaintiff made several comments to Dr. Memken during this time period about
work he was performing. (Tr. 20). In addition, although the alleged onset date of disability was
July 1, 2007, Plaintiff obtained certification as a heavy equipment operator in May 2009 and, in
October 2009, he was standing up in the back of a four-wheeler when it was involved in an
accident.

(Id.).

The ALJ also found that Plaintiff was noncompliant with treatment

recommendations and that evidence in the record suggested he abused marijuana and pain
medications. (Tr. 20-21).
The ALJ thoroughly reviewed all of Plaintiff’s medical records through the date of the
November 13, 2013 hearing. (Tr. 20-26). In regard to Plaintiff’s physical impairments, the ALJ
concluded “there is little objective evidence of record” to support his allegations of debilitating
pain in his back, neck, or left shoulder prior to June 30, 2011, the date last insured. (Tr. 21). As
to Plaintiff’s mental impairments, the only evidence of mental health problems prior to June 30,
2011 were: (1) Plaintiff’s report “that he had only brief out-patient mental health treatment in
2008, when he saw a couple of medical providers only a few times”; and (2) Dr. Memken’s
record that he briefly treated Plaintiff’s mental problems in 2008 with “medication
management.” (Tr. 25).
The ALJ considered the medical opinion evidence and assigned “significant weight” to
the opinion of Dr. Choma, Plaintiff’s treating physician and a specialist in orthopedic surgery.
(Tr. 25).

The ALJ credited Dr. Choma’s opinion that Plaintiff “could do work in the light

exertional range with some additional limitations” because it was “consistent with the evidence
for the time period at issue, between May 29, 2011 and June 30, 2011.” (Id.). Based on
Plaintiff’s testimony at the hearing, however, the ALJ restricted Plaintiff “to less than the full

20

range of sedentary work.” (Tr. 26). The ALJ noted that the record did not contain an assessment
by a state agency medical consultant regarding Plaintiff’s physical limitations. (Tr. 26).
The ALJ proceeded to consider and reject Dr. Goldman’s medical opinions. (Tr. 26).
The ALJ explained that the evidence did not support Dr. Goldman’s finding that Plaintiff was
disabled by mental impairments beginning in July 2007, and that Dr. Goldman’s assessment of
the severity of Plaintiff’s impairments was inconsistent with his progress notes, “which show the
claimant reported doing better when he was compliant with his medication.” (Id.).
At step four of the five-step evaluation process, the ALJ determined that Plaintiff was
unable to perform any past relevant work. (Tr. 27). At the final step, the ALJ noted that Plaintiff
did not have the capacity to perform the full range of sedentary work, but found that jobs existed
in the national economy for an individual with Plaintiff’s age, education, work experience, and
RFC and that Plaintiff “was capable of making a successful adjustment to other work that existed
in significant numbers in the national economy.” (Tr. 28). The ALJ concluded that Plaintiff
“was not under a disability, as defined in the Social Security Act, at any time through June 30,
2011, the date last insured.” (Id.).
V.

Standard for Judicial Review

The court must affirm the ALJ’s decision if it is supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a
reasonable mind might find it adequate to support the conclusion.’” Cruze v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996) (quotation omitted).

In determining whether the evidence is

substantial, the court considers evidence that both supports and detracts from the
Commissioner’s decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). However,
the court “do[es] not reweigh the evidence presented to the ALJ and [it] defer[s] to the ALJ’s

21

determinations regarding the credibility of testimony, as long as those determinations are
supported by good reason and substantial evidence.” Renstrue v. Astrue, 680 F.3d 1057, 1064
(8th Cir. 2012) (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)). The Eighth Circuit has repeatedly held that
a court should “defer heavily to the findings and conclusions” of the Social Security
Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).
VI.

Discussion

Plaintiff claims the ALJ erred in: (1) failing to assign controlling weight to the opinions
of treating psychiatrist, Dr. Goldman; and (2) creating an RFC that was not supported by
substantial evidence. (ECF No. 17). The Commissioner counters that the ALJ properly: (1)
rejected Dr. Goldman’s highly restrictive opinions because they were inconsistent with his
treatment notes and the record as a whole; and (2) formulated the RFC based on Plaintiff’s
credibility and credible limitations. (ECF No. 26).
A. Medical opinion evidence
Plaintiff argues that, because Dr. Goldman was his treating psychiatrist, his medical
opinions are entitled to controlling weight. In response, the Commissioner asserts that the ALJ
properly determined that Dr. Goldman’s medical opinions were inconsistent with his treatment
notes and the record as a whole.

22

“A treating physician’s opinion regarding an applicant’s impairment will be granted
controlling weight, provided the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record.” Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (quoting Singh v. Apfel, 222
F.3d 448, 452 (8th Cir. 2000)). “The ALJ may discount or disregard such an opinion if other
medical assessments are supported by superior medical evidence, or if the treating physician has
offered inconsistent opinions.” Id. (quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)).
See also Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
If an ALJ declines to give controlling weight to a treating physician’s opinion, the ALJ
must consider the following factors in determining the appropriate weight: length and frequency
of the treatment relationship; nature and extent of the treatment relationship; evidence provided
by the source in support of the opinion; consistency of the opinion with the record as a whole;
and the source’s level of specialization. 20 C.F.R. § 404.1527(c). Whether the ALJ grants a
treating physician’s opinion substantial or little weight, “[t]he regulations require that the ALJ
‘always give good reasons’ for the weight afforded to a treating physician’s evaluation.” Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (quoting 20 C.F.R. § 404.1527(d)(2)).
Dr. Goldman first evaluated Plaintiff in June 2012, approximately one year after
Plaintiff’s date last insured.5 (Tr. 409-11, 431-35). In regard to Plaintiff’s psychiatric history,
Dr. Goldman noted only that Plaintiff had “a brief out-patient treatment episode at Mark Twain
Behavioral Health in 2008 where he saw medical provider a few times.” (Tr. 431).
5

Dr.

“When an individual is no longer insured for Title II disability purposes, [the Court] will only
consider [his] medical condition as of the date [he] was last insured.” Davidson v. Astrue, 501
F.3d 987, 989 (8th Cir. 2007) (quoting Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997))..
However, “[e]vidence from outside the insured period can be used in ‘helping to elucidate a
medical condition during the time for which benefits might be rewarded.’” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir. 2006) (quoting Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998)).
23

Goldman observed that Plaintiff was “polite and cooperative,” “conversant,” had normal
judgment and insight, and “maintained good eye contact,” but displayed a “minor processing
delay” and “jerky movements.” (Tr. 409-10). Dr. Goldman assessed Plaintiff a GAF score of 45
and prescribed Saphris to stabilize and improve Plaintiff’s mood. (Tr. 411).
When Plaintiff returned to Dr. Goldman on June 28, 2012, he reported that he was “doing
better.” (Tr. 408). At Plaintiff’s appointments with Dr. Goldman on July 25, 2012, September 5,
2012, and October 29, 2012, Dr. Goldman wrote that Plaintiff had a “partial response” to
medications and exhibited normal behavior, speech, affect, thought process, insight, judgment,
and cognition. (Tr. 407, 406, 505).
In contrast to Dr. Goldman’s treatment notes, which demonstrated that Plaintiff’s
behavior, demeanor, and cognition were normal, the MSS that Dr. Goldman completed on
November 30, 2012 stated that Plaintiff was markedly or extremely impaired in nearly every
functional category. (Tr. 53-55). Specifically, Dr. Goldman found that Plaintiff was moderately
limited in his ability to understand and remember simple instructions and markedly or extremely
impaired in his abilities to understand and carry out complex instructions and make judgments on
simple work-related decisions. (Tr. 53). Additionally, Dr. Goldman wrote for the first time that
Plaintiff’s disability began as early as July 2007. (Tr. 54).
In his next appointment with Dr. Goldman on December 27, 2012, Plaintiff reported that
he was “doing real good” and the Adderall, which Dr. Goldman prescribed in October 2012, was
“helping a lot.” (Tr. 503). Dr. Goldman noted Plaintiff had a “good response” to the medication.
(Id.). On February 13, 2013, Dr. Goldman again stated that Plaintiff had a “good response” to
medication and recorded Plaintiff’s statements that, despite some depression after the death of

24

his mother’s boyfriend, “I think I’m doing fine now” and “everything’s been going very well.”
(Tr. 502).
Plaintiff did not see Dr. Goldman again until November 6, 2013, at which time Dr.
Goldman completed a psychiatric progress note and an updated MSS.6 (Tr. 125-28, 56-57). At
that point, Plaintiff had “lost his Medicaid” and therefore “has not had his medication for at least
one month.” (Tr. 128). Dr. Goldman noted that Plaintiff was “fidgety, nervous, anxious,” but
his orientation, speech, thought process, judgment, insight, and cognition were normal. (Tr.
126). In the updated MSS, Dr. Goldman stated that the impairments to Plaintiff’s abilities to
understand, remember, and carry out instructions and make work-related decisions had declined
since completion of the November 2012 MSS. (Tr. 56). Additionally, Dr. Goldman found that
Plaintiff was extremely impaired in all areas of social functioning. (Tr. 57).
The ALJ thoroughly reviewed Dr. Goldman’s treatment notes, evaluations, and medical
source statements and explained his reasons for rejecting Dr. Goldman’s medical opinions. The
ALJ wrote:
In June 2012, Dr. Goldman assessed the claimant’s GAF score as 45 currently
and 50 at the highest in the past year, indicating serious symptoms and
limitations. Dr. Goldman also believed that the claimant had been disabled by
his mental impairments beginning July 1, 2007, despite the fact that the
claimant had last seen a mental health provider in 2008 and then had only seen
medical providers a few times before initiating treatment with him in June
2012. On December 10, 2012, Dr. Goldman was of the opinion that the
claimant’s mental impairments caused mostly marked to extreme limitations in
all of the mental domains. On November 6, 2013, he was of the opinion that
since his last evaluation, the claimant’s impairments had worsened and were
now causing mostly extreme limitations.
(Tr. 26) (internal citations). The ALJ found that Dr. Goldman’s opinions were inconsistent with
his progress notes, “which show that the claimant reported doing better when he was compliant
6

The record before the ALJ did not contain Dr. Goldman’s treatments notes from the November
6, 2013 appointment.
25

with his medication.” (Tr. 26). The ALJ further noted that there “was no medical evidence of
record that Dr. Goldman had even seen claimant in the 9 months before the November 2013
evaluation and at his last visit of record in February 2013, the claimant reported that everything
had been going very well as long as he was compliant with his medication.” (Id.).
Plaintiff claims that the ALJ’s reasons for rejecting Dr. Goldman’s medical opinions are
not supported by substantial evidence because, contrary to the ALJ’s finding, Dr. Goldman met
with Plaintiff prior to the November 2013 MSS. Because the Appeals Council considered Dr.
Goldman’s notes from the November 6, 2013 appointment when it denied review of the ALJ’s
decisions, those records are part of the administrative record on appeal. Davidson v. Astrue, 501
F.3d 987, 990 (8th Cir. 2007). “Where, as here, the Appeals Council considers new evidence but
denies review, we must determine whether the ALJ’s decision was supported by substantial
evidence on the record as a whole, including the new evidence.” Id.
While it appears that Dr. Goldman met with Plaintiff prior to updating the MSS in
November 2013, the fact remains that there existed a nine-month gap between the February 2013
session and November 6, 2013 session.7 Furthermore, lack of contact with Plaintiff was not the
ALJ’s sole reason for discrediting Dr. Goldman’s medical opinion. As previously discussed, Dr.
Goldman stated in the two MSS’s that Plaintiff’s impairments were considerably more severe
than he suggested in his treatment notes. Additionally, Dr. Goldman completed the November
2013 MSS over two years after Plaintiff’s date last insured and at a time when Plaintiff had been
off his medications for approximately one month. (Tr. 125-28). At his previous appointment
with Plaintiff in February 2013, Dr. Goldman found that Plaintiff was responding well to his
medication. (Tr. 502).
7

Although Plaintiff argues that Dr. Goldman signed a treatment plan for Plaintiff on May 13,
2013, review of the record reveals that Dr. Goldman signed the treatment plan on February 26,
2014. (Tr. 67).
26

Plaintiff also argues that the additional evidence he provided the Appeals Council
regarding his treatment by Mark Twain Behavior Health and his CSS undermine the ALJ’s
decision to reject Dr. Goldman’s medical opinions. “If new and material evidence is submitted,
the Appeals Council shall consider the additional evidence only where it relates to the period on
or before the date of the administrative law judge hearing decision.” 20 C.F.R. § 404.970(b). In
this case, records relating to Plaintiff’s mental health treatment from June 2012 through February
2014, is not material to determining whether Plaintiff was disabled by his mental impairments
prior to June 30, 2011, the date last insured.
Upon review of the record, the Court concludes the ALJ properly evaluated Dr.
Goldman’s medical opinions and provided “good reasons” for his decision to reject them. The
Court therefore finds that substantial evidence on the record as a whole supports the ALJ’s
treatment of medical opinion evidence.
B. RFC
Plaintiff claims that the ALJ’s RFC assessment was not supported by substantial evidence
because it did not adequately address either his mental health limitations or his physical pain.
(ECF No. 17 at 22). The Commissioner counters that Plaintiff presented little evidence of
mental impairments existing prior to the date last insured. (ECF No. 26 at 10). In regard to
limitations imposed by Plaintiff’s pain, the Commissioner asserts that the objective medical
evidence relating to the insured period did not support a more restrictive RFC. (Id.).
RFC is “the most [a claimant] can still do despite” his or her physical or mental
limitations. 20 C.F.R. § 404.1545(a)(1). See also Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004). “The ALJ should determine a claimant’s RFC based on all relevant evidence
including the medical records, observations of treating physicians and others, and an individual’s

27

own description of his limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009)
(quotation omitted). “Because a claimant’s RFC is a medical question, an ALJ’s assessment of it
must be supported by some medical evidence of the claimant’s ability to function in the
workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (quoting Cox v Astrue, 495
F.3d 614, 619 (8th Cir. 2007)). “However, there is no requirement that an RFC finding be
supported by a specific medical opinion.” Id. Nor is an ALJ limited to considering medical
evidence exclusively when evaluating a claimant’s RFC. Cox, 495 F.3d at 619. “It is the
claimant’s burden, and not the Social Security Commissioner’s burden, to prove the claimant’s
RFC.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
In formulating Plaintiff’s RFC, the ALJ included nonexertional limitations with
Plaintiff’s “pain and his mental impairments in mind.” (Tr. 27). The ALJ found that, from May
29, 2010 through June 30, 2011, Plaintiff was unable to perform a full range of sedentary work
because he “was impeded by additional limitations.” (Tr. 28). Specifically, the ALJ wrote:
[T]he claimant is limited to simple, routine and repetitive tasks, as defined in
the Dictionary of Occupational Titles as SVP levels 1 and 2, without strict
production quotas (i.e. with an emphasis on a per shift rather than a per hour
basis). He is limited to occasional interaction with the general public. He can
work around co-workers throughout the day, but with only occasional
interaction with those co-workers.
(Tr. 27).
Plaintiff argues that the RFC “does not align with Dr. Goldman’s restrictions” or the
counseling records of Mr. Smith, which regularly indicated that Plaintiff “had to work…on anger
management and controlling his irritability.”

(ECF No. 17 at 22).

As previously stated,

substantial evidence supported the ALJ’s rejection of Dr. Goldman’s restrictions. In regard to
Mr. Smith’s counseling records, the Court finds they support the ALJ’s finding that Plaintiff was
not disabled prior to June 30, 2011 because he was able to perform at least some work beyond
28

that date. (Tr. 429, 427). For example, Plaintiff informed Mr. Smith in July and August 2012,
that he was able to do “small jobs and look at expanding some business options” and assist his
brother-in-law “in various activities.”

(Tr. 429, 427). Mr. Smith’s records also reveal that

Plaintiff’s mood improved when he was medication compliant. The Court therefore concludes
that consideration of Mr. Smith’s records would not change the RFC and the ALJ adequately
accounted for Plaintiff’s mental impairments by restricting the work to simple, routine, and
repetitive tasks and limiting Plaintiff’s interaction with coworkers and the general public.
Finally, Plaintiff argues that the RFC is not supported by substantial evidence because it
did not account for his chronic pain, which would render him unable to work on a consistent
basis. However, evidence of Plaintiff’s medical condition prior to the date last insured does not
dictate an RFC more restrictive than that formulated by the ALJ.
The record reveals that Plaintiff sought treatment for his degenerative disc disease from
Dr. Memken in September 2008 and October 2009. (Tr. 382, 385). On January 25, 2010,
Plaintiff presented to the emergency room for pain in his head and neck, and he followed up with
Dr. Memken on January 29, 2010. (Tr. 355, 387). Dr. Memken referred Plaintiff to Dr. Glanton
for pain management, but Dr. Glanton refused to prescribe him pain medication. (Tr. 387-87).
On March 10, 2010, Plaintiff called Dr. Memken and requested a refill on his hydrocodone. (Tr.
388). On November 3, 2010, Plaintiff returned to Dr. Memken’s office with a dislocated left
shoulder. (Tr. 389).
The ALJ considered the evidence of Plaintiff’s back, neck, and shoulder pain through the
date last insured and factored it into the RFC. The ALJ found that that Plaintiff could perform a
range of sedentary, unskilled work with limitations, including “a sit/stand option allowing the
claimant to sit or stand alternatively at will providing that he is not off task more than 10% of the

29

work period.” (Tr. 18). The ALJ also further limited Plaintiff to occasional: overhead reaching
with the left extremity; climbing of ramps and stairs; stooping, crouching, kneeling, or crawling;
and handling or fingering objects with his right upper extremity. (Id.).
Furthermore, the substantial medical evidence in the record supported the ALJ’s RFC.
Plaintiff’s treating physician, Dr. Choma, completed a MSS on January 14, 2014. (Tr. 470-73).
In the MSS, Dr. Choma found that Plaintiff had moderate exertional limitations, such as an
ability to stand, walk, or sit about six hours in an eight-hour workday. (Tr. 470-71). Dr. Choma
also found that Plaintiff could occasionally climb, balance, kneel, crouch, crawl, and stoop, and
that Plaintiff had no manipulative, visual, communicative, or environmental limitations. (Tr.
472-73). The ALJ assigned Dr. Choma’s MSS “substantial weight,” but nevertheless included
an RFC with greater restrictions than those recommended by Dr. Choma. (Tr. 25).
Based on the foregoing, the Court concludes that the record contained substantial
evidence to support the ALJ’s RFC assessment, which properly accounted for Plaintiff’s mental
impairments and pain. Although Plaintiff cites evidence that might support a contrary decision,
substantial evidence supports the ALJ”s RFC determination and, as such, this Court is required
to affirm.
VII.

Conclusion

For the reasons discussed above, the undersigned finds that substantial evidence in the
record as a whole supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social
Security benefits to Plaintiff is AFFIRMED.

30

A separate judgment in accordance with this Memorandum and Order is entered this date.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of November, 2016

31