Wiseman v. Colvin
MEMORANDUM AND ORDER: Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/23/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STEVEN J. WISEMAN,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
) Case No. 2:15 CV 85 ACL
MEMORANDUM AND ORDER
Plaintiff Steven Wiseman brings this action pursuant to 42 U.S.C. ' 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Wiseman’s severe impairments,
he was not disabled as he had the residual functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be affirmed.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
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I. Procedural History
Wiseman filed his applications for DIB and SSI on March 4, 2013. (Tr. 158-71.) He
alleged that he became disabled on June 8, 2012, due to left eye blindness, right hip pain, and right
ankle problems. (Tr. 158-71, 210.) Wiseman’s claims were denied initially. (Tr. 69-73.)
Following an administrative hearing, Wiseman’s claims were denied in a written opinion by an
ALJ, dated October 24, 2014. (Tr. 19-27.) Wiseman then filed a request for review of the ALJ’s
decision with the Appeals Council of the Social Security Administration (SSA), which was denied
on October 14, 2015. (Tr. 15, 1-6.) Thus, the decision of the ALJ stands as the final decision of
the Commissioner. See 20 C.F.R. '' 404.981, 416.1481.
In the instant action, Wiseman first claims that the ALJ “erred in failing to properly analyze
the opinion evidence of treating physician Trone in that the ALJ did not give good reasons for
rejecting Dr. Trone’s opinion that Plaintiff could only stand two hours out of an eight hour work
day and sit two hours out of an eight hour work day and that Plaintiff would miss two or more days
per month in that the ALJ did not consider the length of Plaintiff’s treatment by Dr. Trone, the
frequency of this examinations, the nature and extent of the treatment relationship, the
supportability of Dr. Trone’s opinion, the consistency of the opinion with the record as a whole, or
Dr. Trone’s specialization.” (Doc. 17-1 at 16.) Wiseman next argues that the ALJ erred “in
analyzing Plaintiff’s credibility in that the ALJ did not point to any inconsistencies in Plaintiff’s
testimony that would logically detract from Plaintiff’s allegation of disabling pain and therefore
the ALJ’s decision finding Plaintiff not disabled was not supported by substantial evidence on the
whole record.” Id. at 20. Finally, Wiseman argues that the “ALJ decision has affirmed by the
Appeals Council it was not based on substantial evidence in that the Appeals Council did not
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consider the evidence presented about Plaintiff’s prescription for a cane and the Appeals Council
did not consider the Medical Vocational Guidelines as to Plaintiff’s eligibility under the
Guidelines after his 55th birthday on April 15, 2015.” Id. at 23.
II. The ALJ=s Determination
The ALJ first stated that Wiseman met the insured status requirements of the Social
Security Act through December 31, 2016. (Tr. 21.) The ALJ found that Wiseman had not
engaged in substantial gainful activity since his alleged onset date of June 8, 2012. Id.
In addition, the ALJ concluded that Wiseman had the following severe impairments:
degenerative joint disease in the hip and ankle; blind left eye; and chronic obstructive pulmonary
disease. Id. The ALJ found that Wiseman did not have an impairment or combination of
impairments that meets or equals in severity the requirements of any impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22.)
As to Wiseman’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he requires a sit/stand option allowing him to sit
or stand alternatively at will provided he is not off task for more than
10 percent of the work period. He cannot climb ladders, ropes, or
scaffolds. He can occasionally climb ramps or stairs. He can
occasionally stoop, kneel, crouch, and crawl. He must avoid
concentrated exposure to poorly ventilated areas. He must avoid
all use of hazardous machinery, defined as unshielded, moving
machinery and all exposure to unprotected heights. He is limited to
occupations that do not require peripheral acuity. He is limited to
occupations with no strict production quota with the emphasis being
on a per shift, rather than a per hour basis. Meaning, the employer
requires so many widgets per day versus so many widgets per hour.
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The ALJ found that Wiseman’s allegations regarding his limitations were not entirely
credible. (Tr. 24.) In determining Wiseman’s RFC, the ALJ indicated that he was assigning
“partial weight” to the opinion of consultative examiner Dennis A. Velez, M.D. Id. The ALJ
assigned “little weight” to the opinion of treating physician, Aaron M. Trone, D.O. (Tr. 25.)
The ALJ further found that Wiseman is unable to perform any past relevant work. (Tr.
26.) The ALJ noted that a vocational expert testified that Wiseman could perform jobs existing in
significant numbers in the national economy, such as garment sorter, folding machine operator,
and lens matcher. (Tr. 27.) The ALJ therefore concluded that Wiseman has not been under a
disability, as defined in the Social Security Act, from June 8, 2012, through the date of the
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on March 4, 2013, the claimant
is not disabled as defined in sections 216(i) and 223(d) of the Social
Based on the application for supplemental security income filed on
March 4, 2013, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act.
III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a
preponderance of the evidence, but enough that a reasonable person would find it adequate to
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support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial
evidence test,” however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal
quotation marks and citation omitted). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff’s vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff’s
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner’s findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
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Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003). Courts should disturb the administrative decision only if it falls outside the available
“zone of choice” of conclusions that a reasonable fact finder could have reached. Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006).
III.B. Determination of Disability
A disability is defined as the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or that 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); 20 C.F.R. § 416.905. A claimant
has a disability when 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 significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
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looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291
(1987). “The sequential evaluation process may be terminated at step two only when the
claimant’s impairment or combination of impairments would have no more than a minimal impact
on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
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determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
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claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. '' 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. ''
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
not meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20
C.F.R. '' 404.1520a(c)(3), 416.920a(c)(3).
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Wiseman argues that the ALJ erred in evaluating the opinion of treating physician Dr.
Trone, and in assessing the credibility of Wiseman’s subjective complaints. Wiseman also
contends that the Appeals Council erred in failing to consider evidence he submitted after the
ALJ’s decision, and in failing to consider his eligibility under the Medical Vocational Guidelines.
The undersigned will discuss these claims in turn.
Dr. Trone’s Opinion
Dr. Trone completed a Physical Residual Functional Capacity Questionnaire on April 23,
2014. (Tr. 298-301.) Dr. Trone expressed the opinion that Wiseman could frequently lift or
carry five pounds, and occasionally lift or carry ten pounds; stand or walk continuously for thirty
minutes, and stand or walk a total of two hours; sit continuously for twenty minutes, and sit a total
of two hours; is unable to push or pull for lengthy periods of time; can never crouch; can
occasionally climb, balance, stoop, kneel, and bend; and is limited in his ability to reach, handle,
see, and hear. (Tr. 298-99.) Dr. Trone found that Wiseman’s pain or other symptoms would
frequently interfere with attention and concentration needed to perform even simple work tasks,
and that he would be expected to miss work two or more days a month due to his chronic back and
neck pain. (Tr. 300.) Dr. Trone also indicated that assuming reclining and supine positions for
up to thirty minutes one to three times a day would be necessary to help control his pain. Id.
“‘It is the ALJ’s function to resolve conflicts among the various treating and examining
physicians.” Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v.
Barnhart, 421 F.3d 745, 749–50 (8th Cir. 2005) (internal marks omitted)). Opinions from
medical sources who have treated a claimant typically receive more weight than opinions from
one-time examiners or non-examining sources. See 20 C.F.R. § 416.927(c)(1)–(2). However,
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the rule is not absolute; a treating physician’s opinion may be disregarded in favor of other
opinions if it does not find support in the record. See Casey v. Astrue, 503 F.3d 687, 692 (8th Cir.
2007). The treating physician’s opinion should be given controlling weight when it is supported
by medically acceptable laboratory and diagnostic techniques and it must be consistent with other
substantial evidence in the case record. Hacker v. Barnhart, 459 F.3d 935, 937 (8th Cir. 2006).
See also 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (listing ‘[s]upportability” as a factor to be
considered when weighing medical opinions). Inconsistencies may diminish or eliminate weight
given to opinions. Hacker, 459 F.3d at 937. See also Papesh v. Colvin, 786 F.3d 1126, 1132
(8th Cir. 2015) (holding that a treating physician’s opinion “may have ‘limited weight if it
provides conclusory statements only, or inconsistent with the record’”) (quoting Samons v. Astrue,
497 F.3d 813, 818 (8th Cir. 2007)). An ALJ “may discount or even disregard the opinion ...
where other medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermines the credibility of such
opinions.” Id. (quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)).
If an ALJ declines to ascribe controlling weight to the treating physician’s opinion, she
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); 416.927(c). Whether the ALJ grants
the 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). “Failure to provide good reasons for discrediting a
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treating physician’s opinion is a ground for remand.” Reed v. Barnhart, 399 F. Supp.2d 1187,
1194 (E.D. Mo. 2004).
The ALJ stated that he was assigning “little weight” to Dr. Trone’s opinion because it “is
not supported by the claimant’s physical examination findings from 2013 through 2014 that do not
reflect difficulty with ambulation.” (Tr. 25.) He further found that the opinion was unsupported
by Dr. Velez’s findings. Id.
The ALJ acknowledged that Dr. Trone was Wiseman’s treating physician in 2013 and
2014. The ALJ summarized Dr. Trone’s treatment notes, noting that physical examinations
revealed tenderness to palpation in Wiseman’s spine, and on one occasion tenderness and
instability in his right ankle, but no difficulty ambulating and normal muscle strength. (Tr. 25,
335-63.) Dr. Trone’s treatment notes, which are discussed below, support the ALJ’s findings.
Wiseman saw Dr. Trone on June 11, 2013, with complaints of multiple arthritic joints, pain
in the right ankle and right hip, and pain in the tailbone. (Tr. 335.) Wiseman reported the
following history of injuries: a motorcycle accident in 1982 resulting in a severe ankle and leg
sprain, a tailbone injury when he was a child, falls off skateboards as a teenager, a fall from a
ladder as a young adult onto his tailbone, and a fall onto his right hip two years prior. Id.
Wiseman also complained of chronic shortness of breath, but denied chest pain, palpitations,
coughing, or wheezing. Id. Wiseman’s past medical history was significant for chronic
obstructive pulmonary disorder (“COPD”), elevated blood pressure without diagnosis of
hypertension, and low back pain. Id. Upon physical examination, Wiseman was in no acute
distress, his cardiovascular examination was normal, he had no tenderness of the upper extremity,
or the left lower extremity, and full motor strength. (Tr. 336-37.) Dr. Trone noted diminished
breath sounds, tenderness to palpation of the spine, and chronic tenderness and instability of the
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right ankle. Id. He diagnosed Trone with low back pain, COPD, and elevated blood pressure
without diagnosis of hypertension. (Tr. 337.) Dr. Trone ordered lumbar spine and chest x-rays,
and prescribed Mobic.2 Id.
On June 19, 2013, Wiseman reported continued pain in his low back and right hip joint.
(Tr. 338.) Upon examination, Dr. Trone noted tenderness to palpation of the spine. (Tr. 339.)
Wiseman complained of pain with palpation over the right hip joint. Id. Dr. Trone diagnosed
Wiseman with low back pain; and hip pain-pain in joint, pelvic region and thigh. (Tr. 340.) On
July 17, 2013, Dr. Trone assessed COPD, and low back pain, and prescribed Tramadol.3 (Tr.
342-43.) On October 2, 2013, Wiseman complained of low back pain, which he rated as a three
out of ten; and neck pain, which he rated as a seven. (Tr. 346.) Dr. Trone noted that Wiseman
had seen an orthopedist for his hip, who prescribed exercises and ice. Id. Wiseman had also
undergone a CT scan, which revealed interstitial lung disease. Id. Upon physical examination,
Wiseman had normal cervical range of motion, regular breathing, and tenderness to palpation of
the cervical and lumbar spine. (Tr. 347.) Dr. Trone diagnosed Wiseman with low back pain,
interstitial emphysema,4 and cervicalgia.5 Id. He prescribed Mobic. Id. On October 14,
2013, Wiseman saw Dr. Trone “for disability paper work.” (Tr. 349.) Dr. Trone noted that
Wiseman was blind in the left eye, and that he had an appointment scheduled to test his hearing.
Id. Dr. Trone noted tenderness to palpation of the spine. (Tr. 350.) His assessment was
interstitial emphysema and low back pain. (Tr. 351.) Wiseman saw Dr. Trone on December 6,
Mobic is a nonsteroidal anti-inflammatory drug indicated for the treatment of arthritis. See
WebMD, http:// www.webmd.com/drugs (last visited March 6, 2017).
Tramadol is indicated for the treatment of moderate to moderately severe pain. See WebMD,
http:// www.webmd.com/drugs (last visited March 6, 2017).
Interstitial emphysema is the presence of air outside the normal air passages, and inside the
pulmonary tissues. Stedman’s Medical Dictionary, 632 (28th Ed. 2006).
Neck pain. See Stedman’s at 351.
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2013, for complaints of high blood pressure. (Tr. 352.) Dr. Trone found no abnormalities upon
examination. (Tr. 353.) He noted that Wiseman’s gait was normal, and he was able to stand
without difficulty. Id. Dr. Trone diagnosed Wiseman with benign hypertension. Id. On
January 17, 2014, Wiseman complained of increased lower back pain. (Tr. 358.) He was taking
Mobic and Tramadol and “doing ok with those.” Id. Dr. Trone assessed low back pain. (Tr.
359.) Wiseman complained of muscle cramps over the past few weeks on February 10, 2014.
(Tr. 61.) Dr. Trone’s assessment was benign essential hypertension. (Tr. 362.) On April 23,
2014, Wiseman presented with complaints of low back pain that was not dulled by Tramadol, and
brought disability forms for Dr. Trone to complete. (Tr. 375.) Dr. Trone noted reduced range of
motion of the neck and tenderness to palpation of the spine. (Tr. 376.) He diagnosed Wiseman
with cervicalgia and low back pain, and continued the Mobic and Tramadol. Id. On July 1,
2014, Wiseman complained of worsening back, leg, and foot pain. (Tr. 378.) He reported that
he had seen an orthopedist and had done some exercises that seemed to help his hip quite a bit. Id.
Upon examination, Dr. Trone noted tenderness to palpation of the spine. (Tr. 379.) His
assessment was low back pain. (Tr. 380.) On July 17, 2014, Wiseman reported that he had
become dizzy and fallen the previous night, resulting in right wrist pain. (Tr. 381.) Dr.
Wiseman noted tenderness to palpation over the right wrist, with no obvious bony deformity. (Tr.
382.) He advised Wiseman to obtain x-rays, and get a wrist splint. Id. On July 31, 2014, Dr.
Trone noted tenderness to palpation of the spine. (Tr. 385.) His assessment was low back pain;
and hip pain-pain in joint, pelvic region, and thigh. Id.
Dr. Trone’s treatment notes do not support the extreme limitations found in his April 2014
opinion. (Tr. 298-301.) Dr. Trone found that Wiseman had significant difficulty standing and
walking, could only lift five pounds frequently, and was required to assume reclining and supine
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positions for up to thirty minutes one to three times a day. (Tr. 299-300.) There is nothing in Dr.
Trone’s treatment notes, however, to support such limitations. As the ALJ noted, Dr. Trone
found that Wiseman’s gait was normal, and he was able to stand without difficulty in December
2013, just four months before he provided his opinion. (Tr. 353.) Dr. Trone also consistently
found that Wiseman had full strength in his upper extremities. The only abnormalities Dr. Trone
routinely noted was tenderness on palpation of the spine.
It was not until after Dr. Trone provided his opinion that any abnormalities regarding
Wiseman’s gait were noted. Evidence Wiseman submitted to the Appeals Council after the
ALJ’s decision included records from Missouri Orthopaedic Institute, which note Wiseman’s gait
was “slightly unsteady [and] he does walk with a cane” on July 22, 2014. (Tr. 407.) On August
12, 2014, Dr. Trone prescribed a quad cane due to “gait abnormality, hip pain.” (Tr. 391.)
Wiseman returned to Missouri Orthopaedic Institute on August 19, 2014, at which time it was
noted Wiseman had an “antalgic gait favoring his right lower extremity.” (Tr. 420.) Wiseman’s
July 2014 MRI revealed a small disc bulge at L4-5, but it was “unlikely that is the source of his
pain.” Id. Wiseman was directed to follow-up with his primary care provider for evaluation and
treatment of his hip pain. (Tr. 421.)
The ALJ also properly pointed out that Dr. Trone’s opinions were inconsistent with the
findings of consultative examiner Dr. Velez. Dr. Velez saw Wiseman on April 27, 2013, at which
time he complained of pain in his ankle and left hip. (Tr. 287.) Wiseman reported that he had
experienced hip pain since an incident in 2011, where he slipped and fell on his tailbone. Id. He
never went to the hospital or a physician for treatment of this injury. Id. Wiseman reported
ankle pain since a motorcycle accident in the 1980s. Id. Upon physical examination, Wiseman
could not see in the left eye on visual acuity testing, his gait and stance were normal, he had no
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tenderness to palpation or limitation on range of motion of the right ankle, he was able to squat and
rise from that position, walk on his heels and toes, he had slight limitation on range of motion of
the left hip with tenderness, and there was some possibility of left hip arthralgia. (Tr. 288-91.)
Dr. Velez diagnosed Wiseman with possible left hip arthralgia, and blindness in the left eye since
birth. (Tr. 291.) Dr. Velez found that Wiseman “would not have limitations as far as sitting,
standing or walking.” Id. He further found that Wiseman “would not have any problems with
lifting or carrying although he may be slow squatting more than two thirds of the time due to
possibility of left hip arthralgia.” Id. Dr. Velez stated that Wiseman may have problems with
visual fields in the left side secondary to his blindness. Id.
As the ALJ found, Dr. Trone’s opinion is unsupported by the findings on examination of
Dr. Velez. Dr. Velez found only a slight limitation of range of motion of the left hip. He
expressed the opinion that Wiseman had no limitations except in his ability to squat and see out of
the left side, whereas Dr. Trone found Wiseman was incapable of performing even sedentary
work. It is the ALJ’s function to resolve such conflicts among the treating and examining
physicians. Tindell, 444 F.3d at 1005. Consistent with this duty, the ALJ weighed the differing
opinions and found that Wiseman was more limited than Dr. Velez, yet not as limited as Dr. Trone.
The ALJ also discussed the results of imaging. For example, Wiseman underwent x-rays
of the lumbar spine and right hip on June 14, 2013, which revealed no abnormalities. (Tr. 303,
305.) A chest x-ray Wiseman underwent on September 24, 2013, revealed only “mild” thoracic
spondylosis. (Tr. 306.) An x-ray of the lumbosacral spine Wiseman underwent on July 14, 2014
noted “mild” L5-S1 degenerative disc disease, with partial left-sided sacralization6 of L5 with
Sacralization is a congenital abnormality in which the lumbar vertebra gets fused or semi-fused
with the sacrum. See Stedman’s at 1911.
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assimilation arthritis. (Tr. 370.) In addition, evidence submitted after the ALJ’s decision
includes a July 2014 MRI of the lumbar spine, which revealed “multilevel degenerative changes
however no right foraminal stenosis to go on with patient’s complaints.” (Tr. 408.)
The undersigned finds that the ALJ provided sufficient reasons for assigning little weight
to the opinion of Dr. Trone. The ALJ found that the extreme limitations found by Dr. Trone were
inconsistent with other evidence of record, including objective testing and the observations and
opinions of examining physician Dr. Velez. See Grable v. Colvin, 770 F.3d 1196, 1201 (8th Cir.
2014); Martise, 641 F.3d at 927. Dr. Trone’s opinions were also unsupported by his own
treatment notes. See Davidson v. Astrue, 501 F.3d 987, 990-91 (8th Cir. 2007) (affirming an
ALJ’s decision to discount a physician’s later opinion on a plaintiff’s conditions where the
physician’s “treatment notes, recorded over the course of two years, contain few hints of the
serious physical limitations that [the physician] would later attribute to” the plaintiff).
The ALJ concluded that Wiseman was limited to a range of light work. (Tr. 25.) Due to
Wiseman’s allegations of chronic pain, the ALJ found that he required a sit/stand option allowing
him to sit or stand alternatively at will provided he is not off task for more than ten percent of the
work period. Id. He also found that Wiseman cannot climb ladders, ropes, or scaffolds, can only
occasionally climb ramps or stairs; and stoop, kneel, crouch, and crawl. Id.
Due to Wiseman's
symptoms of COPD, the ALJ found that he must avoid concentrated exposure to poorly ventilated
areas. Id. Because Wiseman is blind in his left eye, he was limited to occupations that do not
require peripheral acuity. Id. He must also avoid all use of hazardous machinery. Id. Finally,
the ALJ limited Wiseman to occupations with no strict production quotas due to his combined
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“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)). See also Anderson v.
Shalala, 51 F.3d 777 (8th Cir. 1995).
The Court finds that the ALJ’s decision is supported by substantial evidence in the record,
including medical evidence, and that he accorded proper weight to the treating physician’s
opinions. The ALJ provided a detailed explanation of his RFC finding. In determining
Wiseman’s RFC, the ALJ accounted for Wiseman’s complaints of chronic pain in limiting him to
light work with a sit/stand option, and many postural limitations. The ALJ also included
limitations related to Wiseman’s COPD and left eye blindness. The RFC formulated by the ALJ
was significantly more restrictive than the opinion of Dr. Velez and adequately took into
consideration the effect of Wiseman’s multiple impairments.
Wiseman next contends that the ALJ erred in discrediting his subjective allegations of
In assessing a plaintiff’s subjective complaints, an ALJ is required to examine (1) the
claimant’s daily activities; (2) the duration, frequency and intensity of pain; (3) dosage,
effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5)
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). An ALJ may
disbelieve a claimant’s subjective reports due to inherent inconsistencies or other circumstances.
Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007). “If an ALJ explicitly discredits the
claimant’s testimony and gives good reason for doing so, the Court should defer to the ALJ’s
Page 18 of 23
credibility determination.” See Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003).
The ALJ here identified many reasons to support his findings concerning Wiseman’s subjective
complaints, including the minimal objective findings, Wiseman’s ability to work for many years
with his impairments, and his daily activities. (Tr. 24-25.)
As previously discussed, the objective medical evidence reveals minimal findings.
Imaging studies noted no abnormalities of the right hip or lumbar spine in June 2013, mild thoracic
spondylosis, and mild interstitial lung disease. A July 2014 x-ray of the lumbosacral spine
submitted after the ALJ’s decision revealed “mild” L5-S1 degenerative disc disease and a
congenital abnormality. Wiseman’s motor and sensation testing were consistently normal, and
no gait abnormalities were noted.
An ALJ is entitled to consider a lack of objective findings to
support Plaintiff's allegations about his physical impairments in determining the credibility of such
allegations. See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004).
The ALJ also pointed out that Wiseman’s hip and ankle pain related to injuries that he
sustained in his childhood, as well as in a motorcycle accident in 1982. (Tr. 24.) Wiseman’s left
eye blindness existed since birth. Id. When a claimant has worked with an impairment, the
impairment cannot be considered disabling without a showing that there has been a significant
deterioration in that impairment during the relevant period. See Dixon v. Sullivan, 905 F.2d 237,
238 (8th Cir.1990). See also Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (“[D]espite
suffering from what she calls “extreme fatigue,” Van Vickle continued working for over four
Wiseman argues that the ALJ erred in failing to discuss his good work record. It is true
the ALJ did not discuss Wiseman’s positive work history. Contrary to Wiseman’s argument,
however, the ALJ was not required to discuss how every Polaski factor related to Wiseman’s
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credibility in his decision. Samons v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007). Further, as
discussed above, although Wiseman has a good work history, he was able to work with his
The ALJ next discussed Wiseman’s daily activities. He stated that, although Wiseman
testified at the hearing that he does little all day but recline to relieve his pain, he indicated in his
March 2013 function report that he was capable of performing household chores, such as sweeping
floors, washing dishes, preparing simple meals, and washing laundry. (Tr. 24, 241-48.) The
ALJ stated that there was no objective evidence to suggest his condition worsened since that time.
(Tr. 24.) Wiseman argues that his ability to perform household chores is not inconsistent with his
allegations of disability. While a claimant “need not prove she is bedridden or completely
helpless to be found disabled,” Reed, 399 F.3d at 923 (internal quotation marks omitted), his daily
activities may nonetheless be considered in assessing the credibility of his complaints. See
Wagner v. Astrue, 499 F.3d 842, 852-53 (8th Cir. 2007). The ALJ did not err in considering
Wiseman’s daily activities, and finding his reported activities inconsistent with his subjective
complaints alleged at the hearing.
Finally, the ALJ noted that Wiseman used a cane for ambulation when he appeared for the
hearing, however, there was no prescription for a cane in the record nor was there evidence that
Wiseman had difficulty ambulating. (Tr. 24.) Wiseman argues that the ALJ’s finding was
erroneous because “further research after the hearing did reveal that on August 12, 2014 (well
before the hearing on September 23, 2014) Plaintiff was prescribed a cane by his treating physician
because of ‘gait abnormality and hip pain.’” (Doc. 17-1 at 21, citing Tr. 283-91.) The ALJ’s
statement, however, was accurate at the time he rendered his decision. At the time of the
decision, there was no evidence in the record of a prescription for a cane or of difficulty
Page 20 of 23
ambulating. The new evidence Wiseman submitted to the Appeals Council one month after the
ALJ’s decision will be discussed further with regard to Wiseman’s next argument.
Although the ALJ perceived Wiseman’s pain behavior was “exaggerated” (Tr. 24) based
on his use of a cane at the time of the hearing, when there was no evidence in the record to support
the cane had been prescribed to Wiseman, the ALJ’s credibility determination was not based on
that alone. Notwithstanding that determination, the ALJ thoroughly explained his findings and
the inconsistencies in the record upon which he based the credibility determination. Because the
ALJ pointed to substantial evidence in the record supporting his decision to discount Wiseman’s
subjective allegations, the Court defers to the ALJ’s credibility finding. See e.g., Casey, 503 F.3d
Appeals Council’s Decision to Deny Review
Wiseman argues that the Appeals Council erred in failing to consider new evidence, and in
failing to consider Wiseman’s eligibility under the Medical-Vocational Guidelines.
Wiseman first argues that the Appeals Council did not consider the cane prescription
written by Dr. Trone on August 12, 2014.
(Tr. 391.) The Appeals Council did in fact consider
this evidence and found that it did not change the weight of the evidence in the record as a whole.
The Appeals Council stated, “In looking at your case, we considered the reasons you disagree with
the decision and the additional evidence listed on the enclosed Order of Appeals Council.” (Tr.
2.) The Order listed as one of the exhibits: “Treatment notes from Aaron Trone, D.O., dated
August 12, 2014.” (Tr. 5.) The Appeals Council then found that the additional evidence “[did]
not provide a basis for changing the Administrative Law Judge's decision.” (Tr. 2). Thus,
“[w]here ... the Appeals Council considers new evidence but denied review, [the Court] must
determine whether the ALJ’s decision was supported by substantial evidence on the record as a
Page 21 of 23
whole, including the new evidence.” Davidson, 501 F.3d at 990.
Wiseman alleges disability beginning on June 8, 2012. The relevant time period in this
case, therefore, is from June 8, 2012, through the ALJ’s decision on October 24, 2014. The
record before the ALJ contained Dr. Trone’s treatment notes from June 2013 through July 2014.
As previously discussed, neither Dr. Trone’s treatment notes nor any other medical evidence in the
record at the time of the ALJ’s decision documented any difficulty with ambulation or other
significant abnormalities on examination. Dr. Velez found that Wiseman had no limitations in his
ability to sit, stand, walk, or lift. The new evidence of the prescription for a cane written one
month prior to the hearing and two months prior to the decision does not change the weight of the
evidence in the record. As Defendant accurately points out, Wiseman must show that his
disability lasted or was expected to last for twelve months. See 42 U.S.C. '' 423(d)(1)(A) and
1382c(a)(3)(C)(i). Further, the new evidence Wiseman submitted to the Appeals Council
included a July 2014 MRI of his spine that showed degenerative changes, but no right foraminal
stenosis to correlate with Wiseman’s complaints. (Tr. 408.) Thus, the ALJ’s decision is
supported by substantial evidence, including the new evidence submitted to the Appeals Council.
Wiseman also contends that the Appeals Council failed to consider whether he would have
met Rule 202.04 of the Medical-Vocational Guidelines when he attained age 55 on April 15, 2015.
Once again, the relevant time period for the claim considered by the Appeals Council ended on
October 24, 2014. See 20 C.F.R. '' 404.970(b) and 416.1470(b) (“The Appeals Council shall
evaluate the entire record including the new and material evidence submitted if it relates to the
period on or before the date of the administrative law judge hearing decision.”). If Wiseman
believes he became disabled after the date of the ALJ’s decision, then the proper course of action is
to file a new application for benefits.
Page 22 of 23
In sum, although there is conflicting evidence in this case, the ALJ’s decision denying
benefits was within the “zone of choice.” Hacker, 459 F.3d at 936. Accordingly, Judgment will
be entered separately in favor of Defendant in accordance with this Memorandum.
Dated: March 23, 2017
UNITED STATES MAGISTRATE JUDGE
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