Graham v. Astrue

Filing 26

MEMORANDUM For the reasons set forth above, the court finds that the decision of the ALJ is supported by substantial evidence in the record as a whole and consistent with the Regulations and applicable law. The decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 3/5/12. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN R. GRAHAM,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 4:11 CV 58 DDN

MEMORANDUM
This action is before the court for judicial review of the final
decision

of

applications

defendant
of

Commissioner

plaintiff

John

R.

of

Social

Graham

for

Security

denying

disability

the

insurance

benefits under Title II of the Social Security Act, 42 U.S.C. § 423, and
for supplemental security income under Title XVI of that Act, 42 U.S.C.
§ 1382.

The parties have consented to the exercise of plenary authority

by the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c).

For the reasons set forth below, the court affirms the

decision of the Administrative Law Judge (ALJ).
I. BACKGROUND
Plaintiff, who was born in 1950, filed applications on July 2,
2009, alleging a January 1, 2004 onset date, due to coronary artery
disease (CAD), peripheral vascular disease, chronic obstructive pulmonary
disease (COPD), hypertension, seizure disorder, post traumatic stress
disorder (PTSD) arising from military service in Vietnam, recurrent
syncope episodes, and high cholesterol.

(Tr. 119-21, 162.)

His claims

were denied initially, on reconsideration, and after a hearing before an
ALJ.

(Tr. 9-17, 52-54, 56-61, 64-67.) On November 13, 2010, the Appeals

Council denied his

request for review.

(Tr. 1-3.)

Thus, the decision

of the ALJ stands as the final decision of the Commissioner.
II. MEDICAL HISTORY
From February 19-20, 2009, Graham was admitted to the Veterans
Administration Medical Center (VA) for chest pain and hypertensive

urgency.

The

physician

noted

a

history

of

CAD,

two

angioplasty

procedures and stenting, hypertension, hyperlipidemia or high blood
cholesterol, and seizure disorder.

The physician opined his pain could

have been induced by the stress of his wife’s death on January 29, 2009.
He was administered medications.

His anti-seizure medication was not

restarted due to a history of non-compliance.

(Tr. 419-22.)

On February 27, 2009, upon referral, Graham saw psychologist Patrice
Pye, Ph.D., for mood disturbance and anxiety following his wife’s death
three weeks earlier.

He reported suicidal ideation a few days prior.

Dr. Pye noted a tearful mood, anxiety, low mood, sleep disturbance, poor
concentration,

low

energy,

and

occasional

diagnosed “complicated bereavement.”

suicidal

ideation.

She

(Tr. 1098-1100.)

On March 11, 2009, Graham was seen at the VA for cervical back pain
and other complaints.

He reported neck pain radiating to the low back,

and was taking Vicodin and Tramadol.

His other medications included

Naproxen, a non-steroidal anti-inflammatory drug, and Metoprolol and
Enalapril, both used to treat high blood pressure. Cervical and thoracic
imaging studies revealed degenerative changes and suggested spondylitis
or inflammation of the spinal vertebrae.
degenerative joint disease (DJD).
weight, and stop smoking.

The physician’s impression was

Graham was advised to exercise, lose

(Tr. 1089-91.)

On March 13, 2009, Graham was seen at the VA for an initial
consultation and psychiatric appointment with a psychiatrist, Antonina
Gesmundo, M.D. He had been experiencing anxiety and depression following
his wife’s death.

Graham reported trouble sleeping, poor appetite, low

energy, lack of interest in doing anything, and crying a lot.

Dr.

Gesmundo noted depressed and dysphoric or sad mood, as well as blunted
affect or lack of emotional reactivity.
weighed 252 pounds.

He was 5 feet 5inches tall and

Dr. Gesmundo diagnosed depression and anxiety and

assigned a Global Assessment of Functioning (GAF) score of 60, indicating
“moderate”

symptoms.

(Tr.

1082-89;

American

Psychiatric

Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th Ed.
2008) (DSM-IV)).
On

March

18,

2009,

a

colonoscopy

revealed

hemorrhoids

and

diverticulosis or the presence of diverticula or pouchlike sections in
- 2 -

the colon.

(Tr. 1072-73.)

On March 26, 2009, VA records from a

hypertension consultation noted a history of coronary artherosclerosis,
benign

hypertension,

shoulder

pain,

back

pain,

DJD,

anxiety,

and

transient ischemic attack (TIA), which occurs when blood flow to a part
of the brain stops for a brief period of time.

(Tr. 1066.)

On April 9, 2009, Graham was seen at the VA for cardiac and other
conditions.
angina.

(Tr. 1061.)

He was diagnosed with chest pain and unstable

He was prescribed Plavix, used to prevent strokes and heart

attacks; Hydrocodone, a narcotic analgesic used to relieve pain and
cough; and Naproxen.

(Tr. 1063.)

Also on April 9, 2009, Graham had a suicidal ideation and plan,
including thoughts of cutting his wrists with a knife.

(Tr. 1059-60.)

He reported feelings of depression since his wife’s death.

(Tr. 1030.)

He denied any history of depression prior to his wife’s death.

He was

also very stressed over circumstances with his son who had recently moved
in with him after being released from prison and who was being very
disrespectful of him.

He stated “he just couldn’t take it anymore.”

(Tr. 1030.)
At the advice of his psychologist, Lauren Mensie Ph.D., he was
admitted to the VA on April 9, 2009 for severe major depressive disorder
where he stayed until April 13, 2009.

(Tr. 408-09.)

His GAF score was

40 at the time of admission, which indicates impairment in reality
testing or communication, or major impairment in several areas, such as
work or school, family relations, judgment, thinking, or mood.
at 34.
symptoms.

DSM-IV

His GAF score was 50 at discharge, representing “serious”
(Tr. 409-10; DSM-IV at 34.)

From April 28 through May 8, 2009, Graham was again admitted to the
VA for chest pain and suicidal ideation.

He reported experiencing chest

pain during the two weeks prior to admission.
cigarette smoker for 40 years.
whiskey daily.

He was a pack-a-day

Notes state he had started drinking

He was monitored for suicidal thoughts.

He was placed

on medication and his mental status gradually improved, i.e., his mood
was better.

He was attending support groups and was compliant with

medications.

He was discharged into his own care.

- 3 -

His diagnoses upon

discharge included bereavement, adjustment disorder with depressed mood,
and alcohol abuse.
On May 6, 2009, his GAF score was 61, and on May 7, it was 45.

(Tr.

395-407, 893.)
Graham saw Dr. Mensie again on May 11, 2009 for grief related
issues.

His mood was "mildly” dysthymic or depressed.

hopelessness and was future oriented.
appropriate help-seeking behavior.

He denied

He had strong family support and
He was instructed to return for

follow-up.

(Tr. 866-68.)

that day.

An X-ray of his lumbosacral spine showed mild low back

osteoarthritis.

He was also seen in the chiropractic clinic

(Tr. 1219-22.)

From May 18 to 19, 2009, Graham was admitted to the VA hospital for
CAD.

He reported shortness of breath, nausea, and frequent panic

attacks.

He underwent outpatient cardiac catheterization.

He was

discharged on Plavix, used to prevent heart attacks and strokes, and
scheduled for follow-up. (Tr. 393-95.) He continued with follow-up from
May through July 2009.

(Tr. 686-810, 812.)

From June 20 to 23, 2009, Graham was admitted to St. John’s Mercy
Hospital for low blood pressure and syncopal or fainting episodes,
particularly when getting up from a seated position.

He reported

multiple syncopal episodes over the past several months.

A CT scan of

the

brain

was

compatible

with

prior

strokes.

Doctors

opined

his

psychiatric medications might have been contributing to his low blood
pressure.

He did not have any apparent seizure activity.

His discharge

diagnoses were syncope; hypotension or low blood pressure; dehydration;
acute renal failure; seizure disorder; CAD; hypertension; PTSD; tobacco
dependence; dyslipidemia or abnormalities in lipids or lipoproteins in
the

blood;

and

a

probable

old

cerebrovascular

accident.

He

was

instructed to stay hydrated, to use his air conditioning, and to stop
smoking.

His condition upon discharge was “good.”

(Tr. 311-13.)

On August 25, 2009, Graham was seen for a psychological follow-up.
He described his mood as “good,” but reported a low mood one to two weeks
earlier.

He also reported passive thoughts of death during the week

prior but denied any thoughts of suicide.

- 4 -

(Tr. 1282-84.)

On September 22, 2009, Graham was seen for psychological follow-up,
reporting that his mood was “real good.”
1273.)

His affect was “bright.”

He had good social support from his family.

(Tr.

He had purchased a

dog, met a new girlfriend, was researching employment opportunities, and
had applied for social security income.

He was more animated and upbeat

than in earlier sessions, which his therapist opined was probably due to
his

new

girlfriend.

concentration problems.

He

continued

to

experience

low

energy

and

(Tr. 1272-74.)

During a November 13, 2009 neurological evaluation, Graham reported
that he was doing “OK”; that he was unable to stand more than 20 minutes
at a time due to back pain; and that he had 15 seizures in the last four
months.

The diagnostic impression was post traumatic seizures.

His

medications were adjusted and he was instructed to follow-up in three
months.

(Tr. 1270-72.)

On November 15, 2009, Graham was seen for a laceration to his left
hand, sustained while skinning a deer.
the sutures removed two weeks later.

The laceration was sutured, and
(Tr. 1169-77.)

On November 20, 2009, Graham saw Dr. Mensie for follow-up for his
issues with grief and depression.
thoughts of suicide for months.

At that time he had not had any

He described himself as “really happy.”

He denied any symptoms of depression, any problems with anxiety, and
reported “stable” functioning. (Tr. 1269.) He reported occasional times
when he felt down and had low motivation.

Dr. Mensie noted improvement

in Graham's mood and discussed coping strategies.

Dr. Mensie noted that

Graham’s therapeutic goals of mood stabilization and maintaining his
safety had been accomplished, and that he did not have any new goals for
therapy.

He denied any distress and reported regular use of healthy

coping strategies.

He declined to schedule a follow-up appointment and

would instead return as needed.

(Tr. 1268-69.)

Graham next saw Dr. Mensie on February 1, 2010.

Dr. Mensie noted

a mildly dysthymic or depressed mood, among other things.
continued difficulties with concentration.

Records note

Graham discussed a recent

argument with his son on the anniversary of his wife’s death.

He

described a recent suicidal ideation with a vague plan but no intent.
He stated that he had coped with the ideation by keeping a journal of his
- 5 -

feelings, which he found helpful.
by telephone.

The plan was to follow-up in one week

(Tr. 1263-65.)

On February 1, 2010, Dr. Mensie prepared a Mental Medical Source
Statement (MSS).

Concerning activities of daily living, Dr. Mensie

indicated moderate limitation with functioning independently and behaving
in an emotionally stable manner; marked limitation with coping with
normal stress; and no limitation in adhering to basic standards of
neatness and cleanliness.

Regarding social functioning, Dr. Mensie

indicated moderate limitation relating to family and peers, interacting
with the public, and maintaining socially acceptable behavior. She noted
marked limitation with accepting instructions and criticism and with
requesting assistance. Regarding concentration, persistence or pace, Dr.
Mensie indicated moderate limitation with respect to making simple and
rational decisions and sustaining an ordinary routine without special
supervision,

and

marked

limitation

maintaining

attention

and

concentration for extended periods and responding to changes in the work
setting.

(Tr. 1181-84.)

Dr. Mensie opined that Graham would require three or more absences
per month and would arrive late or leave early from work at least three
times per month.

She diagnosed recurrent major depressive disorder,

noting his two hospitalizations for suicidal ideation in 2009.

She

opined that while Graham's functioning had become more stable since that
time,

it

would

employment.

Dr.

still

negatively

Mensie

did

not

impact
complete

his
the

ability
section

to

maintain

in

the

MSS

addressing “sustained and regular performance,” noting that she could not
provide this information

because doing so would require guessing.

(Tr.

1181-84.)
Graham continued to be seen at the VA for his various conditions
during February and March 2010.

(Tr. 1185-1263.)

On April 16, 2010, he

was seen in the emergency room (ER) at Missouri Baptist Sullivan Hospital
following a seizure the night before.

The ER physician advised Graham

that his Dilantin level was low, called the VA about his condition, and
advised Graham to go to the VA that day.

- 6 -

(Tr. 1296-300.)

Testimony at the Hearing
On June 30, 2010, Graham appeared and testified to the following at
a hearing before an ALJ.

(Tr. 23-50.)

He has an eighth grade education.

He has past work in asbestos removal, construction, doing line work in
a factory, and as a janitor.

(Tr. 26-27, 47.)

He has back problems, shoulder pain, and seizures.

He has had two

heart attacks and a stroke. Medication does not always control his blood
pressure.

He has received mental health treatment, including therapy

after having suicidal thoughts.

He has had approximately 40 seizures

within the prior year, and takes his anti-seizure medication regularly.
He uses an inhaler for his cardiac condition and for shortness of breath.
He smokes a pack of cigarettes per day.

(Tr. 28-36.)

He cannot walk for more than about 20 minutes due to shortness of
breath.

He can stand for only about 15 minutes.

of milk repeatedly.
sleep medication.

He cannot lift a gallon

He has constant pain in his legs and back and takes
He naps for an hour or so about four days per week.

He gets depressed and anxious, particularly when in crowds.
marijuana occasionally for pain.

(Tr. 37-44.)

He smokes

He denied that he was a

hunter or that he had ever had an accident involving a knife.

(Tr.

43.)

Vocational Expert (VE) Delores Gonzales also appeared and testified
at the hearing. The ALJ asked the VE to assume a hypothetical individual
of Graham’s age and educational background who could lift and carry 20
pounds occasionally and 10 pounds frequently; stand or walk for six out
of eight hours; sit for six hours; and occasionally climb stairs, ramps,
ropes,

ladders,

and

scaffolds.

The

individual

could

understand,

remember, and carry out simple instructions to non-detailed tasks,
respond appropriately to supervisors and co-workers, adapt to routine
simple work changes, and take appropriate precautions to avoid hazards.
In response, the VE testified that the individual could perform Graham’s
past relevant work (PRW) as a production assembler.

(Tr. 47-48.)

The ALJ then asked the VE to assume a hypothetical individual with
the

limitations

set

forth

by

Dr.

Mensie.

The

VE

employment would be precluded under that hypothetical.

- 7 -

testified

that

(Tr. 48-49.)

III.

DECISION OF THE ALJ

On August 27, 2010, the ALJ issued an unfavorable decision.
9-17.)

(Tr.

At Step One, the ALJ found that Graham had not engaged in

substantial gainful activity since March 11, 2009, the date after a prior
ALJ decision, or after January 1, 2004, his alleged onset date.

(Tr.

12.)
At Step Two, the ALJ found that Graham had severe impairments of
obesity, CAD, cardiogenic syncope, degenerative disc disease of the
lumbar spine, major depressive disorder, polysubstance abuse, and PTSD.
At Step Three, the ALJ found that Graham did not suffer from an
impairment or combination of impairments of a severity that meets or
medically equals the required severity of a listing.

(Tr. 12.)

Prior to Step Four, the ALJ found that Graham had the RFC to perform
“light” work as defined in the regulations, with additional restrictions.
He could stand for six hours out of eight, and walk/stand for six out of
eight hours.

He could lift and carry 20 pounds occasionally and 10

pounds frequently.

He could occasionally climb stairs, ramps, ropes,

ladders, and scaffolds.

He could understand, remember, and carry out

simple instructions and non-detailed tasks; respond appropriately to
supervisors and co-workers; adapt to routine/simple changes; and take
appropriate precautions to avoid hazards.

(Tr. 13.)

The ALJ gave little weight to Dr. Mensie’s opinion that Graham’s
depressive

symptoms

negatively

employment,

specifically

noting

impacted
that

it

his
was

ability

to

inconsistent

maintain
with

her

progress notes and that it did not factor in the effects of alcohol and
marijuana abuse. The ALJ also noted Dr. Mensie's description of Graham's
mental conditions as "stable."

(Tr. 15-16.)

The ALJ found Graham not credible, based upon his substance abuse,
as well as inconsistencies with his testimony and the record evidence.
(Tr. 16.)

At Step Four, the ALJ found Graham able to perform his PRW as

a production assembler.
under the Act.

The ALJ therefore found Graham not disabled

(Tr. 16-17.)

- 8 -

IV.

GENERAL LEGAL PRINCIPLES

The court’s role on judicial review of the Commissioner’s decision
is to determine whether the Commissioner’s findings comply with the
relevant legal requirements and is supported by substantial evidence in
the record as a whole.

Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.

2009). “Substantial evidence is less than a preponderance, but is enough
that

a

reasonable

mind

would

Commissioner’s conclusion.”

find

Id.

it

adequate

to

support

the

In determining whether the evidence is

substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.

Id.

As long as substantial evidence

supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is
unable to perform any substantial gainful activity due to a medically
determinable physical or mental impairment that would either result in
death or which has lasted or could be expected to last for at least
twelve

continuous

months.

42

U.S.C.

§§

423(a)(1)(D),

(d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d 935, 942 (8th Cir. 2009).

A

five-step regulatory framework is used to determine whether an individual
qualifies for disability.

20 C.F.R. § 404.1520(a)(4); see also Bowen v.

Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process);
Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) he is not
currently engaged in substantial gainful activity, (2) he suffers from
a severe impairment, and (3) his disability meets or equals a listed
impairment.

Pate-Fires, 564 F.3d at 942.

If the claimant does not

suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five.

Id.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform
his PRW.

Id.

The claimant bears the burden of demonstrating he is no

longer able to return to his PRW.

Id.

If the Commissioner determines

the claimant cannot return to PRW, the burden shifts to the Commissioner

- 9 -

at Step Five to show the claimant retains the RFC to perform other work.
Id.
V. DISCUSSION
Plaintiff argues the ALJ erred in determining his RFC by failing to
include appropriate limitations supported by the record; failing to cite
and describe medical evidence in support of his RFC determination; and
arriving at unsupported medical conclusions.

He also argues the ALJ’s

credibility finding is not supported by substantial evidence.

The court

disagrees.
RFC is a medical question and the ALJ’s determination of RFC must
be

supported

by

substantial

evidence

in

the

record.

Hutsell

v.

Massanari, 259 F.3d 707, 711 (8th Cir. 2001); Lauer v. Apfel, 245 F.3d
700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
2000).

RFC is what a claimant can do despite his limitations, and it

must be determined on the basis of all relevant evidence, including
medical records, physician’s opinions, and a claimant’s description of
his limitations.

Donahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001);

20 C.F.R. § 416.945(a).

While the ALJ is not restricted to medical

evidence alone in evaluating RFC, the ALJ is required to consider at
least some evidence from a medical professional. Lauer, 245 F.3d at 704.
An "RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,
observations)." SSR 96-8p, 1996 WL 374184, at * 7 (Soc. Sec. Admin. July
2, 1996).
Following a review of the evidence, including Dr. Mensie's treatment
notes, the court concludes substantial evidence on the record as a whole
supports the ALJ’s RFC finding.

The court also finds the ALJ properly

discredited Dr. Mensie's opinion.
In her MSS, Dr. Mensie opined that Graham’s ability to cope with
normal stress, accept instructions or respond to criticism, ask simple
questions or request assistance, respond to changes in the work setting,
and

maintain

attention

“markedly” limited.

and

concentration

(Tr. 1181-82.)

for

extended

period

was

The record evidence, however, fails

to support marked limitations in those areas.
- 10 -

Dr. Mensie’s treatment

notes show that while Graham experienced grief, depression, and anxiety
following his wife’s death, and from his son moving in with him following
his son’s release from prison, he was handling coping fairly well.

(Tr.

405-06, 1059.)
The record evidence shows Graham had normal concentration in April
and August 2009, and only "mild" difficulties with concentration in
September and November 2009.

(Tr. 1030, 1035, 1045, 1268, 1273, 1283.)

He could read and obey simple commands.

(Tr. 998.)

Other evidence also

shows that Graham answered questions appropriately and could follow one,
two, and three step commands. (Tr. 613.)
concentrate.

(Tr. 45.)

Graham testified that he could

Dr. Mensie's progress notes repeatedly state

that Graham denied hopelessness and suicidal plans or intent.

(Tr. 601,

621, 805-07, 998, 1002-03, 1070, 1076-77, 1237, 1239, 1244, 1253-54,
1257, 1259, 1264,1268, 1273, 1283, 1285, 1291.)

He was alert and

oriented, pleasant and cooperative, and "future oriented."

(Tr. 601,

621, 807, 999, 1002, 1004, 1076, 1237, 1240, 1244, 1253, 1257, 1265,
1268, 1273, 1283, 1285, 1291).

Dr. Mensie also repeatedly noted that

Graham had a history of "appropriate help-seeking behavior," indicating
that he was able to ask questions and seek assistance.

(Tr. 80, 808,

1244, 1253, 1268-69.)
In her MSS, Dr. Mensie further opined that Graham was moderately
limited

in

his

ability

to

function

independently;

behave

in

an

emotionally stable manner; relate to family, peers, or caregivers;
interact

with

strangers

or

the

general

public;

maintain

socially

acceptable behavior; make simple and rational decisions; and sustain an
ordinary routine without special supervision.

(Tr. 1181-82.)

However,

record evidence shows that, despite Graham’s grief, his thought process,
recent and remote memory, and general fund of knowledge were normal.
(Tr. 592-93.)

Dr. Mensie's notes from August and September 2009 state

that Graham was researching employment opportunities, and spending time
with his family and new girlfriend.

(Tr. 1273, 1283.)

Evidence from

November 2009 shows that Graham’s mood and affect, speech, behavior,
judgment, thought content, cognition, and memory all were "normal." (Tr.
1169-72.)

- 11 -

Graham was also advised to socialize with peers and attend group
therapy,

indicating

that

he

could

relate

to

peers,

strangers, and maintain socially acceptable behavior.

interact

with

(Tr. 593.) He

responded "quickly" to the supportive environment of group therapy. (Tr.
407.) Dr. Mensie's notes from November 2009 also reflect that Graham was
encouraged to maintain a moderate activity level with daily structure.
(Tr. 1269.)

Graham himself testified that he did not have problems

making friends or with interpersonal relationships.

(Tr. 44.)

The court concludes that the evidence therefore indicates that
Graham can behave in an emotionally stable manner; relate to family,
peers, and care givers; interact with strangers; maintain socially
acceptable behavior; make simple and rational decisions; and sustain an
ordinary routine without special supervision.
An ALJ may reject the opinion of any medical expert that is
inconsistent with the medical record as a whole.
275 F.3d 722, 725 (8th Cir. 2002).

See Estes v. Barnhart,

The court concludes that the ALJ here

properly noted that Dr. Mensie's opinion is inconsistent with her own
treatment notes, and therefore appropriately discredited her opinion.
See 20 C.F.R. § 404.1527(d)(2)(2011)(treating physician's opinion must
be supported by credible and persuasive evidence); Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005)(generally, an ALJ is obligated to give
controlling weight to a treating physician's medical opinions that are
supported by the record).
Graham also argues the ALJ substituted his own medical opinion in
rejecting Dr. Mensie's, and failed to cite other medical opinion evidence
in support.

This argument is without merit.

As stated above, the ALJ

bears "the primary responsibility for assessing a claimant's residual
functional capacity based on all relevant evidence."
222 F.3d 466, 469 (8th Cir. 2000).

Roberts v. Apfel,

That said, a claimant's RFC is a

medical question and "at least some" medical evidence must support the
ALJ's RFC determination. See Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001).
capable

As set forth above, Dr. Mensie's notes reflect that Graham is
of

understanding,

remembering,

and

carrying

out

simple

instructions and non-detailed tasks, responding appropriately to others,
adapting to change, and taking precautions to avoid hazards.
- 12 -

Graham also argues that the ALJ failed to include the physical
limitations with lifting, standing, and walking about which he testified.
The ALJ discussed the record evidence prior to concluding that Graham was
not credible.

(Tr. 16.)

The ALJ determined that Graham had the RFC to

lift and carry 10 pounds frequently and 20 pounds occasionally;

sit six

hours; walk/stand six hours; and occasionally climb stairs, ramps, ropes,
ladders, and scaffolds.

(Tr. 13.)

This court finds no controlling substantial evidence reflecting
physical limitations beyond those found by the ALJ. For instance, Graham
testified to back problems.

However, the record evidence from July and

August 2009 shows that straight leg raising was negative; his response
to sensation was intact; and his gait, posture, heel walking, toe
walking, tandem walking, motor strength, and lower limb functional
testing were normal.

(Tr. 1213, 1232.)

Graham never underwent back

surgery, injections, chiropractic care, physical therapy, or used a TENS
unit for his pain.

(Tr. 28, 1211.)

A claimant's statement about pain

or other symptoms does not, by itself, establish disability.
C.F.R. §§ 404.1529 and 416.929 (2011).

See 20

There must be medical signs and

laboratory findings showing a medical impairment which could reasonably
be expected to produce the symptoms alleged and which, when considered
with all of the other evidence, would lead to the conclusion that the
claimant is disabled.

(Id.) See also Curran-Kicksey v. Barnhart, 315

F.3d 964, 968 (8th Cir. 2003)(lack of supporting objective medical
evidence is one factor in evaluating credibility); Kelley v. Callahan,
133 F.3d 583, 589 (8th Cir. 1998)(allegations of disabling pain properly
discounted because of inconsistencies such as minimal or conservative
medical treatment).
Other record evidence also detracts from Graham’s credibility.
Graham testified that he had approximately 40 seizures during the
previous year. (Tr. 33.) However, doctors opined that these events were
not seizures, but episodes of syncope or fainting that were not caused
by his neurological condition, but by hypotension, a low heart rate,
dehydration, and changes to medication. (Tr. 28, 312, 445, 651, 665-66.)
Graham was also smoking marijuana “almost every day” and was advised to
stop.

(Tr. 1228-29.)
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The credibility of a claimant's subjective testimony is primarily
for the ALJ to decide, not for the court. See Pearsall v. Massanari, 274
F.3d 1211, 1218 (8th Cir. 2001).

If the ALJ discounts a claimant's

credibility and gives good reasons for doing so, the court will defer to
ALJ’s judgment even if every factor is not discussed in depth. See Brown
v. Chater, 87 F.3d 963, 966 (8th Cir. 1996).

Because the ALJ here

articulated the inconsistencies on which he relied in discrediting
Graham’s testimony regarding his subjective complaints, and because the
credibility finding is supported by substantial evidence on the record
as a whole, the ALJ's credibility finding is affirmed.

See Pena v.

Chater, 76 F.3d 906, 908 (8th Cir. 1996).
VI.

CONCLUSION

For the reasons set forth above, the court finds that the decision
of the ALJ is supported by substantial evidence in the record as a whole
and consistent with the Regulations and applicable law.

The decision of

the Commissioner of Social Security is affirmed. An appropriate Judgment
Order is issued herewith.

/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on March 5, 2012.

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