Haynes v. Social Security Administration

Filing 20

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and that this case is DISMISSED. An appropriate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on August 30, 2012. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARSHALL F. HAYNES,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case number 4:11cv0547 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Michael J.
Astrue, the Commissioner of Social Security (Commissioner), denying the application of
Marshall Haynes (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned for a final disposition
pursuant to the written consent of the parties. See 28 U.S.C. § 636(c). Plaintiff has filed a
brief in support of his complaint; the Commissioner has filed a brief in support of his answer.
Procedural History
Plaintiff applied for DIB in June 2008, alleging he was disabled as November 27,
2007, by severe chronic arm pain and high blood pressure. (R.1 at 119-21.) His application
was denied initially and after a hearing held in September 2009 before Administrative Law
Judge (ALJ) Bradley Hanan. (Id. at 8-22, 27-76.) The Appeals Council then denied

1

References to "R." are to the administrative record filed by the Commissioner with his

answer.

Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of
the Commissioner. (Id. at 1-3.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Delores Gonzalez, M.Ed., a vocational expert
(VE), testified at the administrative hearing.
Plaintiff was 54 years old at the time of the hearing. (Id. at 33.) He is 5 feet 10 ½
inches tall and weighs 241 pounds. (Id.) Although his normal weight is 180 pounds, he has
not weighed that little for the past two years due to his decreased level of activity. (Id. at 3334.) He has an Associate of Arts degree in business management and served as a Marine
from 1972 to 1975. (Id. at 34-35.) He was not honorably discharged. (Id. at 35.) He has
a current driver's license, although his wife does most of the driving because he falls asleep
at the wheel and his arms become numb. (Id. at 35, 36.) He lives with his wife. (Id. at 35.)
Although they have five children between them – his wife has a son; he has a daughter; and
they have three daughters together – none live at home on a permanent basis. (Id.)
Plaintiff last worked doing custodial tasks at Kirkwood Stair after being released to
return to work following an on-the-job injury. (Id. at 37.) He had been working for that
company since October 2001 driving a truck and delivering stair parts. (Id. at 38.) In June
2007, his left rotator cuff was injured when windows fell on it. (Id. at 42-43.) After being
in physical therapy, he had surgery on the shoulder in November 2007. (Id. at 44-45.) He
continued to go to physical therapy until March 2008, when his doctor told him there was
nothing else he could do and released him to return to work. (Id. at 45.) And, because he

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continued to have problems with his left shoulder after surgery and because of the pain
medication he was taking, he was assigned the custodial tasks after returning to work. (Id.
at 38, 45-46.) He returned to work in October 2007 and was laid off the next month because
he did not have the training to work on the machines.2 (Id. at 39-40.)
After the shoulder surgery proved to be unsuccessful, Plaintiff consulted the doctor
who had performed rotator cuff surgery on his right shoulder in 1995. (Id. at 46.) That
doctor and another doctor his union referred him to both opined that the surgery should be
redone. (Id. at 46-47.) The doctor the worker's compensation carrier sent him to opined that
all that could medically be done had been done. (Id. at 47.)
The surgery on the left shoulder was never redone; however, the doctor referred by
the union did repair the right rotator cuff. (Id.) Plaintiff has a worker's compensation claim
pending for the left shoulder injury. (Id. at 48.)
Plaintiff continues to have problems with his left shoulder. (Id.) He is no longer able
to reach above his head as far as he used to and has a "rachet feeling" when he rotates the
shoulder in a certain way. (Id.) Also, he has pain that radiates from his left shoulder to his
elbow. (Id.) He no longer takes pain medication because he does not like the way it makes
him feel. (Id.) He further testified that he took only one Oxycontin pill because it made him
stop breathing. (Id. at 58.)
He is right-handed, but is also unable to reach with that arm as he had been. (Id. at
49.) Specifically, he cannot reach behind him as he used to do and can not lift his right arm

2

The discrepancy in times is not explained.
-3-

higher than shoulder level. (Id.) If he tries to reach beyond his limits, he experiences pain
radiating from his shoulder to his hand. (Id. at 50.) His grip strength is not what it used to
be. (Id.) It is uncomfortable for him to brush his teeth and shave. (Id.) He does limited
household chores, e.g., he can rinse a dish and put it in the sink. (Id.) And, he can no longer
use his carpentry tools like he used to do. (Id. at 51-52.) If he attempted to do carpentry
work, after thirty to forty-five minutes the pain in his arms would be unbearable and he
would then have to rest for one to two hours. (Id. at 52.)
Because he has a problem falling asleep at random times, his doctor wants him to be
evaluated for sleep apnea. (Id. at 37, 59.) The problem began two to three years earlier. (Id.
at 52.)
Plaintiff recently began seeing Dr. Crane to address such issues as his short temper.
(Id. at 53-54.) He was prescribed Lexapro. (Id. at 53.) Also, he has difficulty staying
focused on a task. (Id. at 54-55, 61-62.)
Before working for Kirkwood Stair, he worked for Royal Gate Dodge for five months
as a service manager at the oil change rack. (Id. at 40.) That job ended when he was injured
on the job. (Id. at 41.) Before Royal Gate Dodge, he worked for Don Flier Motors doing
porter work, driving a truck, and delivering parts. (Id.) That job ended when he was laid off
after two and one-half years. (Id.) Before that job, he worked at Six Flags helping to set up
the new water park. (Id.) Before that job, he ran a photography business for a California
company. (Id. at 42.) The business employed between forty-five to sixty people, and he did
the training, the sales, payroll, and other management duties. (Id.)

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Plaintiff described a typical day as arising around 4:30 to 5:00 in the morning after
falling asleep two or three hours earlier, doing any household chore he can, walking or sitting
and reading, eating cereal for breakfast around 8:00 or 8:30 a.m., and watching televison with
his wife. (Id. at 55, 56-57.) They also watch television in the afternoon and evening. (Id.
at 57.) He has a "handful of friends." (Id.) He no longer goes to church as he used to; there
is no particular reason why not. (Id.) He no longer works on his car because laying on his
back underneath the car is hard on his shoulders. (Id. at 58.)
Plaintiff has had the same sleeping pattern at night for the past twenty-five to thirty
years. (Id. at 56.)
Ms. Gonzalez classified Plaintiff's past work as a photographer in an amusement park
as light, semiskilled and as the retail manager of the photography studio as light, skilled; his
work as a porter for the car dealership as medium, unskilled; as a service writer for the
dealership as light, skilled; as an auto parts deliveryman as medium, semi-skilled; as a box
truck driver as medium, semi-skilled; as a landscape laborer as heavy, unskilled; as a
carpenter for a mobile home service as medium, skilled; as a janitor as heavy, unskilled; and
as a pest control worker as light, semi-skilled. (Id. at 65.)
She was then asked by the ALJ to assume the following hypothetical person.
[A] person of [Plaintiff's] age, education and work experience. This individual
is limited to work within the light exertional category who is unable to climb
ramps, stairs, ladders, ropes or scaffolds. Is bilaterally unable to extend his
arms to reach or to reach overhead only occasionally for both, a [sic]
manipulative exertions. He is – this individual is to not be exposed to any
extreme cold or any extreme vibrations and this individual is to have only
occasional interaction with the public and occasional interaction with coworkers.
-5-

(Id. at 66.) Ms. Gonzalez testified that such a person could not perform any of Plaintiff's past
relevant work because of the reaching. (Id.) There were, however, other jobs he could
perform. (Id.) These jobs included election clerk and surveillance system monitor, both of
which existed in significant numbers in the national and state economies. (Id. at 66-67.)
If this person was unable to fully reach overhead, the job of election clerk would be
eliminated. (Id. at 67.) And, although Plaintiff would have acquired some management skills
at a prior job, any jobs to which those skills would be transferable would also require contact
with others at the work site. (Id. at 68.) If this person was limited to no interaction with coworkers and only occasional interaction with supervisors, the job of surveillance system
monitor would still be appropriate. (Id.)
After the hearing, the ALJ sent the VE some interrogatories, explaining that he had
"inadvertently omitted some qualifying terms and additional specific limitations in certain
hypotheticals" he had asked her during the hearing. (Id. at 238.) In addition to Plaintiff's age,
education, and work experience, the first hypothetical described an individual who has the
residual functional capacity (RFC) to perform light work except he is unable to climb ramps,
stairs, ropes, ladders, or scaffolds; is limited to not reaching higher than waist level; must
avoid all exposure to cold and vibrations; and could have only occasional contact with the
public and co-workers. (Id. at 244.) The VE answered that this individual could not perform
Plaintiff's past relevant work as he performed it or as it is normally performed in the national
economy. (Id.) This individual could perform other work: specifically, that of a grinder,
pretzel twister, lacer, microfilm processor, and collator operator. (Id. at 245.) Her answer

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would be unchanged if this person was also limited to no crawling, no contact with the
public, and occasional contact with co-workers. (Id. at 245-46.) Her answers are consistent
with the Dictionary of Occupational Titles (DOT). (Id. at 246.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms Plaintiff completed as part of
the application process, documents generated pursuant to his application, medical records,
and various evaluations.
When applying for DIB, Plaintiff completed a Disability Report. (Id. at 174-82.) He
is 5 feet 10 inches tall and weighs 235 pounds. (Id. at 174.) He is unable to work because
of severe chronic pain in his arms, high blood pressure, fatigue, and depression. (Id. at 175.)
He has difficulty using his arms above his shoulders or behind him or when tying his shoes.
(Id.) He has difficulty driving. (Id.) It is painful for him to hold his arms out in front of him.
(Id.) He has difficulty bending to pick up objects, and does not have much strength. (Id.)
Because of his pain, his blood pressure is elevated. (Id.) He is fatigued and has blackouts
when trying to complete a task. (Id.) Because of the pain in his shoulders and arms, he
cannot lift or carry anything. (Id.) Because of these impairments, he became unable to work
on November 27, 2007. (Id.) He had tried to return to work, but was unable to due to his
pain. (Id.) He eventually stopped working on March 10, 2008. (Id.) His medications
included Meloxicam (for symptoms of osteoarthritis), Naprosyn (an anti-inflammatory and
pain reliever), Vicodin (an opioid pain reliever), and Oxycontin (an opioid pain reliever). (Id.

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at 180.) The second and third were prescribed by Dr. Milne; the fourth by Dr. Sigmund.
(Id.) Oxycontin caused him to be short of breath. (Id.)
Plaintiff also completed a Function Report. (Id. at 194-201.) He did not answer the
question asking him to describe his daily activities. (Id. at 194.) He reported that he had to
have help dressing, bathing, and caring for his hair. (Id. at 195.) He also needs help
remembering to take his medications in the morning and after lunch. (Id. at 196.) His
stamina is not what it used to be. (Id.) He uses a riding mower to cut his lawn, taking at least
two hours to mow less than an acre. (Id.) He only drives when it is necessary and there is
no one else available. (Id. at 197.) He shops once a week for food, cleaning supplies, and
clothing; these excursions last thirty minutes. (Id.) He is no longer able to do his former
hobbies of fishing, swimming, and boating. (Id. at 198.) He occasionally attends church.
(Id.) Because of his pain, he is reluctant to socialize. (Id. at 199.) His impairments
adversely affect his abilities to lift, reach, sit, climb stairs, remember, complete tasks,
concentrate, use his hands, and get along with others. (Id. at 199.) He is able to walk a
quarter of a mile at most before having to stop and rest for ten to fifteen minutes. (Id.) He
can pay attention for no longer than an hour. (Id.) Concentration is a problem when he tries
to follow written instructions. (Id.) He gets along fine with authority figures. (Id.) He had
been fired from his recent job at Kirkwood Stair Company after a misunderstanding with a
supervisor. (Id. at 200.) He does not handle stress very well. (Id.)
Plaintiff's wife completed a Function Report on his behalf. (Id. at 210-18.) She
reported that Plaintiff goes to physical therapy three times a week. (Id. at 210.) She assists

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him in dressing, bathing, caring for his hair, and shaving. (Id. at 211.) He needs to be
reminded to take his medication. (Id. at 212.) Using a riding mower, it takes Plaintiff four
hours to cut less than an acre of grass. (Id.) He needs help getting motivated to do this chore.
(Id.) Plaintiff does not interact with many people because he is withdrawn and distant. (Id.
at 214.) His impairments adversely affect his abilities to lift, use his hands, follow
instructions, reach, complete tasks, and get along with others. (Id. at 215.) He cannot lift
anything heavier than two pounds. (Id.) He does not get along well with authority figures.
(Id.) He was fired from his recent job with Kirkwood Stair Company. (Id. at 216.) He does
not handle stress or changes in routine well. (Id.)
After the initial denial of his application, Plaintiff competed a Disability Report Appeal form. (Id. at 230-34.) There had been no changes in his impairments or any new
impairments. (Id. at 230.)
Also before the ALJ were medical records for Plaintiff, summarized below in
chronological order and beginning on June 25, 2007, when Plaintiff consulted Bobby
Enkvetchakul, M.D., M.P.H., for complaints of left arm pain. (Id. at 268-69.) He reported
that he had had ongoing pain in that shoulder and arm and numbness in the left hand since
some windows he and coworkers had been unloading from a truck had fallen on him five
days earlier. (Id. at 268.) On examination, he had no swelling or erythema in the left
shoulder, but did have diffuse tenderness to palpation posteriorly over the shoulder girdle.
(Id.) His active and passive ranges of motion in the shoulder were limited on abduction to
ninety degrees. (Id.) His internal rotation was almost normal. (Id.) His strength was

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"minimally weak," i.e., 5-/5 with complaints of pain. (Id.) A drop-arm test3 was negative;
an impingement test4 and any motion in the left shoulder caused complaints of pain. (Id.)
X-rays were negative for any acute findings. (Id. at 268.) Dr. Enkvetchakul's diagnosis was
left shoulder pain. (Id. at 268.) He prescribed Naprosyn and physical therapy three times
a week for two weeks. (Id.) He also restricted Plaintiff to modified duty. (Id.)
Returning two weeks later, on July 3, Plaintiff reported having had no improvement
in his pain. (Id. at 270.) He further reported that the physical therapy was not helping. (Id.)
His pain was also emanating from the left side of his cervical region. (Id.) Dr. Enkvetchakul
noted that Plaintiff "appear[ed] comfortable during the interview and examination process."
(Id.) The active range of motion in Plaintiff's left shoulder was 70 degrees on abduction and
60 to 70 on flexion. (Id.) "Any type of provocative testing such as impingement testing or
any motion at all of the left shoulder produced complaints of pain." (Id.) Deep tendon
reflexes were symmetrically diminished in the upper extremities. (Id.) Plaintiff could make
a full fist. (Id.) The sensation and circulation in his left upper extremity was intact. (Id.)
The only significant finding of an x-ray of his cervical spine was some straightening. (Id.)

3

This test "evaluates for a supraspinatous muscle tear. . . . The test is positive if the patient
is unable to keep arms elevated after the examiner releases." Univ. of Mich., Musculoskeletal
Shoulder Examination, http://sitemaker.umich.edu/fm_musculoskeletal_shoulder/drop_arm_test (last
visited Aug. 9, 2012).
4

An impingement test is performed by internally rotating a sitting patient's arm with the thumb
facing downward and abducting and forward flexing the arm. NISMAT, Physical Evaluation of the
Shoulder, http://www.nismat.org/orthocor/exam/shoulder.html#Evaluation (last visited Aug. 9,
2012). "If impingement is present, the patient will experience pain as the arm is abducted." Id.
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Plaintiff was directed to continue with his medication and with physical therapy. (Id.) The
diagnosis was the same; he was restricted to working with his left arm at his side. (Id.)
When Plaintiff next saw Dr. Enkvetchakul, on July 18, his complaints and lack of
improvement were as before. (Id. at 271-72.) After examining Plaintiff, Dr. Enkvetchakul
noted that Plaintiff's "pain complaints [were] in a somewhat bizarre pattern." (Id. at 271.)
"The pain location would change depending on the type of motion performed at the left
shoulder. He could voluntarily move the left shoulder in various patterns and have changing
pain complaints." (Id.) He was given a subacromial injection and lidocaine. (Id.) The
injection gave him no relief. (Id. at 272.) Because of this, the unusual pain pattern, and a
negative cervical magnetic resonance imaging (MRI),5 Dr. Enkvetchakul characterized the
left shoulder pain as being of uncertain etiology and decided to refer Plaintiff for a second
opinion examination. (Id.)
Reporting that he had begun to have joint pain throughout his entire body shortly after
leaving the office, Plaintiff was seen again by Dr. Enkvetchakul the next day. (Id. at 273-74.)
After examining Plaintiff, Dr. Enkvetchakul concluded that joint pains were the result of a
viral infection and unrelated to the injection. (Id. at 273.) Plaintiff was instructed to follow
up with primary care physician for treatment of the joint pains. (Id.)
Plaintiff consulted Mark D. Rickmeyer, D.O., with Patients First Health Care, LLC
(Patients First) on August 1 "to establish as a new patient." (Id. at 439-41.) He reported

5

The MRI results themselves are not in the record.
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having numbness and a positive Tinel's sign6 in his left hand and a stiff and tender neck since
being pinned under glass panes in June. (Id. at 439.) He was taking Naprosyn for the pain.
(Id.) Dr. Rickmeyer prescribed routine tests, e.g., a colonoscopy and fasting blood profiles,
and scheduled Plaintiff to return in one month with his blood pressure diary readings. (Id.
at 441.)
Plaintiff underwent an independent medical evaluation on August 2 by Michael J.
Milne, M.D. (Id. at 277-78, 286, 365-67, 407-09, 421-24.) Plaintiff's chief complaint was
of an injury to his left shoulder and spine from falling windows. (Id. at 277-78.) He
described the pain as a nine on a ten-point scale, as constant and sharp, and as present with
standing, sitting, or trying to sleep. (Id. at 278, 286.) Nothing made it better; trying to work
made it worse. (Id.) On examination he was – as he had been with Dr. Enkvetchakul – in
no acute distress. (Id.) His mood, affect, and general appearance were all normal. (Id.) He
had normal musculature and a limited range of motion in his right shoulder. (Id.) He had a
range of motion in his left shoulder restricted to 90 degrees on active forward flexion, to 82
on abduction, to 75 on internal rotation, and to 50 on external rotation. (Id.) He was
"significant[ly]" weak in all planes. (Id.) He was tender over the acromioclavicular (AC)
joint, the rotator cuff footprint, and the biceps tendon. (Id.) He had a positive impingement
sign and a "mildly positive Hawkin's sign."7 (Id.) X-rays showed "a type II/II acromion8 and
6

A positive Tinel's sign is elicited "when lightly banging (percussing) over the nerve elicits a
sensation of tingling . . . ."
MedicineNet.com, Definition of Tinel's sign,
http://www.medterms.com/script/main/art.asp?articlekey=16687 (last visited Aug. 15, 2012).
7

The Hawkin's sign is a subchondral radiolucent band seen on x-rays of a bone after six to
eight weeks of disuse or immobilization. Edwin F. Donnelly, M.D., The Hawkins Sign,
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joint space narrowing of the AC joint, but no other osseous abnormalities." (Id.) (Footnote
added.)
After being asked by Plaintiff's employer's worker's compensation coordinator to
assume care of Plaintiff, Dr. Milne wrote the worker's compensation insurance carrier on
August 30 that Plaintiff had a passive forward flexion in his left shoulder to 100 degrees,
external rotation to 10 degrees, abduction and external rotation to 30 degrees, and internal
rotation to 10 degrees. (Id. at 363, 419.) His strength was "markedly decreased." (Id.) Dr.
Milne's diagnosis was left shoulder partial thickness rotator cuff tear and left shoulder
adhesive capsulitis9; his recommendation was that Plaintiff undergo a manipulation under
anesthesia and fluoroscopic assisted cortisone injection, followed by physical therapy and
use of a continuous passive motion (CPM) machine. (Id.)
Shortly before Dr. Milne wrote his letter, Plaintiff rated his pain on a numeric pain
scale as currently being an eight or nine, i.e., it made him bed ridden, at its lowest an eight
or nine, and at its worst a ten, i.e., it was so bad he should seek emergency medical care and
be in the hospital. (Id. at 302.) He also completed a pain disability index asking that he rate

http://radiology.rsna.org/content/210/1/195.full (last visited Aug. 9, 2012).
8

The acromion is the lateral extension of the spine of the scapula (shoulder blade) which forms
the highest part of the shoulder.
MedicineNet.com, Definition of Acromion,
http://www.medterms.com/script/main/art.asp?articlekey=9699 (last visited Aug. 15, 2012). A type
II acromion is more curved than the normal, type I acromion and downward dipping; type II is hooked
and downward dipping. Allen E. Fongemie, M.D., Management of Shoulder Impingement Syndrome
and Rotator Cuff Tears, http://www.aafp.org/afp/1998/0215/p667.html (last visited Aug. 15, 2012).
9

Adhesive capsulitis is "a condition in which there is limitation of motion in a joint due to
inflammatory thickening of the capsule, a common cause of stiffness in the shoulder." Stedman's
Medical Dictionary, 273 (26th ed. 1995).
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the degree to which seven aspects of his life were disrupted by chronic pain. (Id. at 303-05.)
On a scale from zero to ten, with zero being no disability and ten being total disability, he
rated the degree in each of the seven aspects as an eight or nine. (Id. at 303-04.) The seven
aspects were: family/home responsibilities; recreation; social activity; occupation; sexual
behavior; self-care; and life-support activity. (Id.) Plaintiff's responses remained virtually
unchanged when he again completed a numeric pain scale and pain disability index on
September 6.10 (Id. at 306-09.)
That same day, the physical therapist wrote Dr. Enkvetchakul that Plaintiff had
attended three of five scheduled appointments and reported no significant changes in his
symptoms, included persistent shoulder pain and decreased mobility. (Id. at 359-60.) The
therapist noted that Plaintiff's responses to the pain disability index indicated that "he
perceive[d] himself at a high level of disability." (Id. at 359.)
On September 10, Dr. Milne performed an examination and manipulation of Plaintiff's
left shoulder, under anesthesia, and administered a glenohumeral injection into the shoulder.
(Id. at 282-83, 417-18.) The preoperative and postoperative diagnoses were left shoulder
adhesive capsulitis and left shoulder pain. (Id. at 282.) Plaintiff was to start physical
therapy, which he did on September 12. (Id. at 283, 289-90, 380-82.)

10

The only changes were a six to describe his lowest pain during the past month and the
addition of a seven to the eight and nine circled for three aspects on the index.
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After the third session, on September 17, Plaintiff reported that he was not having
"much pain" and was tolerating the range of motion and theraband exercises well. (Id. at
378.)
The following day, Dr. Milne prescribed a four-week course of physical therapy with
two to three sessions each week. (Id. at 288.) He noted that Plaintiff's range of motion was
"much improved." (Id. at 416.)
Between September 28 and November 5, inclusive, Plaintiff participated in ten
physical therapy sessions. (Id. at 368-77.) At the October 24 session, Plaintiff reported
increased pain after loading boards into a machine at work. (Id. at 372.) The physical
therapist noted at the session on October 26, "[p]ain and verbal moaning at end ranges of
flexion and abduction.

[Plaintiff] moves about clinic smiling and joking with staff;

progresses program with no facial grimacing." (Id. at 371.) On October 31, the therapist
noted that Plaintiff's exercises were limited secondary to complaints of pain, but he was "in
no observable distress" and was "able to carry on normal conversation and joke with staff."
(Id. at 369.) Once in October and again in November, Plaintiff completed numeric pain
scales and pain disability indexes; his responses remained virtually unchanged. (Id. at 31016.)
While participating in physical therapy, Plaintiff saw Dr. Milne on October 18. (Id.
at 414.) Dr. Milne recommended he continue with physical therapy. (Id. at 414.)
After seeing Plaintiff on November 15 and noting that he had a good range of motion
but weak overall strength, Dr. Milne recommended he undergo arthroscopic surgery,

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subacromial decompression, and rotator cuff repair. (Id. at 413.) Two weeks later, Plaintiff
underwent a rotator cuff repair, subacromial, distal clavicle resection, and labral and
glenohumeral debridement of his left shoulder. (Id. at 284-85, 411-12.) Dr. Milne described
the repair as "excellent" and noted that the shoulder could be taken through a range of
motion. (Id. at 285, 412.) Eight days later, with moderate guarding, Plaintiff had a passive
range of motion in his left shoulder of 82 degrees on flexion, 90 degrees on abduction, 55
degrees on internal rotation, and 25 degrees on external rotation. (Id. at 291-92.) The active
range of motion was greater: 162 degrees on flexion; 145 on abduction; 40 on internal
rotation; and 86 on external rotation. (Id. at 291.) His muscle strength in his rotator cuff
musculature was 4+/5. (Id.) Plaintiff was to continue with physical therapy and remain on
light duty, including no use of his left arm. (Id.) Dr. Milne did not evaluate Plaintiff's
complaints of right shoulder pain, which Plaintiff also attributed to the work injury, because
he lacked authorization to do so. (Id. at 292.)
Two days after the rotator cuff repair, Plaintiff completed another numeric pain scale
and pain disability index; he rated his current pain as a ten and listed its affect on the seven
aspects of life as ten. (Id. at 317-20.) The following month, the affect was a nine. (Id. at
321-24.)
Plaintiff reported to the physical therapist on December 26 that throbbing pain had
awoken him at 1:30 a.m. and that he had ridden in car for two hours en route to Branson for
the holidays. (Id. at 332.) He tolerated all the physical therapy activities "without ill effects
and leaves . . . in no apparent distress." (Id.) The physical therapy notes of the next day

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report that Plaintiff had stated he had significant pain in his left shoulder and could not sleep
in bed. (Id. at 331.) He tolerated all the physical therapy activities "without ill effects and
leaves . . . in no apparent distress." (Id.) At his January 2, 2008, physical therapy session,
Plaintiff continued to demonstrate improvement in range of motion; he tolerated all the
physical therapy activities "without ill effects and le[ft] . . . in no apparent distress." (Id. at
320.)
When seeing Plaintiff on January 3, Dr. Milne told him he wanted him to continue
wearing the sling and with passive range of motion exercises for the next two weeks. (Id. at
293-94, 333, 401-02, 410.) After that, Plaintiff could discontinue wearing the sling and start
active range of motion exercises. (Id. at 293.)
Five days later, Plaintiff reported to the physical therapist that he had been in pain
since 5:00 that morning. (Id. at 329.) The following day, January 9, his range of motion was
limited secondary to pain and muscle guarding. (Id. at 328.) As before, he tolerated all the
physical therapy activities "without ill effects and le[ft] . . . in no apparent distress." (Id.)
This same observation is repeated in the notes of January 16, together with a reference to
Plaintiff having been at his Branson home for the past several days. (Id. at 327.) The
following day, it is noted that pain continued to limit Plaintiff's passive range of motion;
soreness continued to be present in his left shoulder. (Id. at 326.) On January 18, the
physical therapist described Plaintiff as progressing well with no increased pain. (Id. at 325.)
He tolerated all the physical therapy activities "without ill effects and le[ft] . . . in no apparent
distress." (Id.) Plaintiff continued, however, to have soreness in his shoulders. (Id.)

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Plaintiff reported to Dr. Milne on January 29 that he was "doing alright," but was
having "generalized shoulder aching." (Id. at 296.) He further reported that he had been
wearing his sling and doing the passive exercises. (Id.) His passive range of motion was to
160 degrees on forward flexion; 120 degrees on abduction; 55 degrees on internal rotation;
and 70 degrees on external rotation.

(Id.)

His left hand was neurologically and

neurovascularly intact. (Id.) X-rays of the left shoulder showed the post-surgical changes;
x-rays of the right shoulder showed a type III acromion and prominent spurring about the AC
joint. (Id.) Dr. Milne wanted Plaintiff to continue with the physical therapy, take an antiinflammatory, participate in a home exercise program, and adhere to light duty work
restrictions. (Id. at 279, 296, 399, 406.) He could return to work with restrictions of not
lifting more than fifteen pounds and not reaching, doing overhead work, pushing, or pulling.
(Id.) If his worker's compensation carrier approved, an MRI of his right shoulder would be
performed. (Id. at 296.) Dr. Milne listed diagnoses of rotator cuff tear, shoulder pain, and
shoulder impingement – all for the left shoulder. (Id. at 279, 399, 406.)
Plaintiff telephoned Dr. Milne's office on February 4 and was told to continue icing
his shoulder – he had stopped – and to try over-the-counter Aleve. (Id. at 299, 398.)
Between January 28 and February 20, inclusive, Plaintiff participated in ten physical
therapy sessions. (Id. at 345-49, 351-52, 355-56.) It was twice noted that pain limited his
active range of motion. (Id. at 345, 348.)
During this time, on February 11, Dr. Milne replied, "Correct," to a faxed inquiry from
Plaintiff's employer asking that he confirm that Plaintiff did not need to wear a sling on his

- 18 -

left arm and that he was able to work with restrictions of no lifting with his left upper
extremity of anything heavier than fifteen pounds, no overhead reaching, and no pushing or
pulling. (Id. at 350.)
On February 25, Dr. Milne's only diagnosis was left rotator cuff tear. (Id. at 281, 340,
404.) The treatment was a home exercise program and physical therapy; work restrictions
were limited use of the left arm and no lifting anything heavier than twenty-five pounds with
the left arm. (Id.) Dr. Milne reported to Plaintiff's worker's compensation carrier that
Plaintiff primarily complained of right shoulder pain with moving or lifting. (Id. at 300, 339,
397.) X-rays of the left shoulder showed a type II acromion and joint space narrowing at the
AC joint. (Id.) Plaintiff requested an MRI of his right shoulder. (Id.) Dr. Milne opined that
the right shoulder pain was not attributable to the work-related injury, but wanted to see
Plaintiff after the MRI was done. (Id.) Dr. Milne's impression was of bilateral shoulder pain.
(Id.)
Between February 25 and March 14, inclusive, Plaintiff participated in six physical
therapy sessions. (Id. at 334-37, 341, 386.) Plaintiff continued to report pain when at his
physical therapy sessions, even when taking pain medication. At the March 3 session, he
reported having increased pain when driving and riding in a car to Pinnacle Lake,
approximately an hour away.11 (Id. at 335.) On March 10, he reported that he might try to

11

See Bing Maps, http://www.bing.com/maps/?lvl=12&cp=38.82667 (last visited Aug. 9,

2012).
- 19 -

run a 5 K race on the upcoming St. Patrick's Day; his therapist recommended against it. (Id.
at 334.)
The diagnoses listed in Dr. Milne's notes of March 20 are the same as in January; the
only treatment was physical therapy for two or three times a week for four weeks; and the
only restriction was not to lift more than twenty-five pounds. (Id. at 280, 385, 403.) Dr.
Milne wrote to Plaintiff's worker's compensation carrier that Plaintiff reported that he had
been doing well until he had severely exacerbated his left shoulder at work the last Friday
when using a vibrating lathe. (Id. at 301, 396.) His pain was increased; his range of motion
and strength were decreased. (Id.) Also, his lower extremities had swollen. (Id.) On
examination, Plaintiff had a range of motion in his left shoulder of 145 degrees on flexion,
140 degrees on abduction, 45 degrees on internal rotation, and 55 degrees on external
rotation. (Id.) Plaintiff and his wife brought in a book about fibromyalgia and inquired
about whether he could be suffering from that. (Id.) Dr. Milne recommended that a second
opinion be obtained. (Id.)
Plaintiff had an MRI of his right shoulder on March 31. (Id. at 445-46.) David
Mueller, M.D., noted that the MRI was of "limited diagnostic quality secondary to patient
motion degradation as well as decreased signal to noise." (Id. at 275-76.) His impression
was of Type III acromion; right acromioclavicular joint arthrosis; marked insertional
supraspinatous and infraspinatus tendinesis; a rim rent tear of the supraspinatous tendon; a
partial thickness articular-sided tear insertional supraspinatous/infraspinatus interval; bursal
sided fraying; artifact along the proximal extra-articular bicipital tendon sheath of uncertain

- 20 -

etiology; and questionable degenerative frayed appearance of the superior right glenoid
labrum posterior to the biopital anchor. (Id. at 276.) The next day, Dr. Milne recommended
that Plaintiff obtain a second opinion about his left shoulder. (Id. at 405.)
Plaintiff consulted James C. Strickland, M.D., on April 4 about pain in his right
shoulder. (Id. at 390-92.) He explained that, although he had had problems with the shoulder
before, it had been "doing very well" until he injured it at work the previous September. (Id.
at 392.) Dr. Strickland referred Plaintiff to Dr. Rothrock. (Id.)
Dr. Milne wrote the worker's compensation insurance carrier on April 10 that Plaintiff
was "neurologically and neurovascularly intact" about the left and right upper extremities.
(Id. at 395.) His passive range of motion in the left upper extremity was 170 degrees of
flexion, 165 degrees of abduction, 70 degrees of internal rotation, and 90 degrees of external
rotation. (Id.) His rotator cuff musculature strength was 4/5. (Id.) Plaintiff had a limited
range of motion in his right shoulder secondary to pain. (Id.)
Four days later, Plaintiff consulted Robert H. Sigmund, M.D., about his right shoulder
pain. (Id. at 453-54.) On examination, he had "fairly reasonable motion" in that shoulder.
(Id. at 453.) There was no evidence of adhesive capsulitis. (Id.) He had full internal and
external rotation, but was tender at the extreme ranges. (Id.) The anterolateral aspect of the
shoulder was mildly tender; the acromioclavicular joint, clavicle, and sternoclavicular joint
were not tender. (Id. at 454.) His scapulothoracic articulation was normal, and there was no
evidence of instability. (Id.) X-rays of the shoulder revealed no obvious fracture or
subluxation. (Id.) "His acromion appear[ed] to be a type II going into a type III." (Id.) He

- 21 -

had "quite a bit of insertional supraspinatous and infraspinatus tendonitis," a partial thickness
tear, a trace amount of fluid in the subdeltoid and subacromial bursa region, and a frayed
appearance to his labrum and biceps anchor, this latter a result of his previous rotator cuff
tear. (Id.) Plaintiff wished to proceed with an arthroscopic evaluation of the shoulder. (Id.)
Consequently, nine days later, Plaintiff underwent a right shoulder arthroscopy with rotator
cuff repair, labral debridement, biceps debridement, subacromial decompression, and
acromioplasty. (Id. at 462-63.) The postoperative diagnoses were right shoulder rotator cuff
tear, labral fraying, biceps tendinitis, and impingement. (Id. at 462.) Dr. Sigmund then
referred Plaintiff to physical therapy, three times a week for one month. (Id. at 461.) After
Plaintiff complained of shortness of breath when taking the Percocet prescribed after the
surgery, he was prescribed Vicodin and told to call if the symptoms persisted. (Id. at 452.)
At a follow-up visit on April 30, Plaintiff reported doing okay and denied having any
new problems. (Id. at 451.) He had good internal and external rotation. (Id.) Dr. Sigmund
was able to passively flex and abduct his right shoulder to 90 degrees. (Id.) He was to
continue working on his passive range of motion and refrain from engaging in an active range
of motion. (Id.) Dr. Sigmund opined that Plaintiff would be able to return to work in
approximately three weeks. (Id. at 457.)
After seeing Plaintiff on May 28 and noting that he continued to have some pain in
his shoulder and to require pain medication, albeit infrequently, Dr. Sigmund released him
to return to work in approximately one month. (Id. at 450, 456.) He also noted that
Plaintiff's range of motion was "coming along very well." (Id. at 450.) After seeing Plaintiff

- 22 -

on July 7, Dr. Sigmund again released him to return to work in approximately one month.
(Id. at 449, 455.) At that time, Plaintiff had not had any setbacks and was ready to regain his
strength. (Id. at 449.)
Plaintiff underwent an independent medical evaluation by Richard C. Lehman, M.D.,
on May 27. (Id. at 428-32.) He had a limited range of motion in his left shoulder and pain
with full forward flexion. (Id. at 431.) He had soreness with elevation of his shoulder and
complaints of pain in the shoulder; "[t]hey appear[ed] to be somewhat non-physiologic."
(Id.) He had pain in the thumbs down position and with external and internal rotation. (Id.)
He did not have any evidence of redness, increased heat, swelling, instability, popping,
grinding, or mechanical loss. (Id.) He had "a very minimal crepitus in the shoulder." (Id.)
Dr. Lehman opined that Plaintiff's complaints of pain seemed "to be somewhat in excess of
his objective examination." (Id.) He recommended that Plaintiff have a post-arthroscopic
MRI of his shoulder. (Id.) Should the MRI be negative, Dr. Lehman opined that Plaintiff
would be at maximum medical benefit and able to work without restrictions. (Id.)
Plaintiff reported to Dr. Rickmeyer on June 3 that he was continuing to have pain in
his left shoulder. (Id. at 436.) He had a decreased range of motion in that shoulder to "about
30%." (Id.) He was discouraged about gaining weight; he then weighed 236 pounds. (Id.)
If he was unable to lose weight and thereby lower his blood pressure, Dr. Rickmeyer

- 23 -

anticipated placing him on anti-hypertensives. (Id.) Plaintiff informed Dr. Rickmeyer that
he was "seeing Dr. Njince for fibromyalgia."12 (Id.)
Plaintiff was seen by Dana Hellebusch, a registered nurse practitioner, with Patients
First on September 25. (Id. at 470-72.) He reported that his right rotator cuff had fully
healed; his left continued to cause pain. (Id. at 470.) An MRI could not be done on the left
shoulder due to debris. (Id.) He was diagnosed with myalgia and myositis, unspecified;
hypertension; and morbid obesity. (Id.) On examination, he was in no apparent distress.
(Id.) His affect was normal, as was his judgment, insight, attention span, and concentration.
(Id. at 471.) He was, however, having problems with anxiety, which the nurse practitioner
attributed to the shoulder issues, having to be off work, and problems with worker's
compensation. (Id.) An anti-anxiety medication, Lexapro, was given. (Id.) He had pain
with range of motion extension in his left shoulder. (Id.) It was recommended that he
consult an orthopedic surgeon about his left shoulder problems. (Id.)
The ALJ also had before him an assessment of Plaintiff physical residual functional
capacity and an evaluation of his mental health.
In August 2008, a Physical Residual Functional Capacity Assessment (PRFCA) of
Plaintiff was completed by Lisa Buhr, who was a "single decisionmaker"13 and not a medical

12

Plaintiff later informed Dr. Volarich, see pages 31 to 32, infra, that he had seen Dr. "Ince"
only once. (See id. at 494.)
13

See 20 C.F.R. §§ 404.906, 416.1406 (defining role of single decisionmaker under proposed
modifications to disability determination procedures). See also Shackleford v. Astrue, 2012 WL
918864, *3 n.3 (E.D. Mo. Mar. 19, 2012) ("Single decision-makers are disability examiners
authorized to adjudicate cases without mandatory concurrence by a physician.") (citation omitted).
- 24 -

consultant. (Id. at 464-69.) The primary diagnosis was status-post bilateral rotator cuff
repair; the secondary diagnoses were high blood pressure and fibromyalgia. (Id. at 464.)
These impairments resulted in exertional limitations of Plaintiff being able to occasionally
lift or carry twenty pounds; frequently lift or carry ten pounds; and, stand, walk, or sit for
approximately six hours in an eight-hour day. (Id. at 465.) His ability to push and pull was
otherwise unlimited. (Id.) He had no postural, visual, or communicative limitations. (Id. at
466-68.) He was limited in his ability to reach in all directions, including overhead, but had
no other manipulative limitations. (Id. at 467.) He also had environmental limitations of
needing to avoid concentrated exposure to extreme cold and vibrations. (Id. at 468.)
At the request of Plaintiff's counsel and on "short notice," he was evaluated by John
B. Crane, M.D., F.A.P.A., in September 2009. (Id. at 473-87.) Plaintiff saw Dr. Crane
twice. (Id. at 484-87.) Plaintiff reported to Dr. Crane that he had gone to school for business
management and had worked at Six Flags after his former employer would not put him back
to work following a work-related injury to both shoulders. (Id. at 474.) The job at Six Flags
was stressful and caused him to have "'a breakdown'" at one point and be hospitalized for
three days. (Id.) The Lexapro he had been prescribed for anxiety was not effective. (Id.)
He did not sleep for more than two or three hours a night. (Id. at 474, 485.) He had been
tested for Attention Deficit Hyperactivity Disorder (ADHD) and found to have it. (Id.) He
does better when he does not have to work with a boss. (Id. at 474, 486.) The pain
medication he takes for his shoulders makes his sleeping problems worse. (Id. at 475.) He
does not allow his wife to drive and gets angry with her when she gets upset when he falls

- 25 -

asleep driving. (Id. at 475, 484.) He is depressed. (Id. at 475, 485.) When he goes through
a period of sleeplessness, he is unable to concentrate. (Id. at 475.) He had been discharged
from the Marines after injuring himself helping his father put hot tar on a roof; the resulting
burns required that he be hospitalized for longer than one month. (Id. at 475, 486.) When
he started driving trucks, his sister would go with him to keep him awake. (Id.) He appeared
"to be tense and anxious and somewhat depressed." (Id.) He had no evidence of psychotic
thought content or thought disorder and did have appropriate thought content and logical and
coherent associations. (Id.) Dr. Crane wrote:
Diagnostically this man presents something of a challenge. Because of the
history of depressive episodes and his description of his mind constantly going
and being unable to sleep, except for short intervals, the question of Bipolar
Disorder must be raised. His impulsiveness and tendency to irritability and
inability to get along with supervisors would be consistent with this diagnosis.
(Id. at 475-76.)
On a Mental Residual Functional Capacity Questionnaire, Dr. Crane listed diagnoses
of rule out14 bipolar disorder; rule out ADHD; and rule out narcolepsy. (Id. at 478.)
Plaintiff's prognosis was good "once he [was] properly diagnosed and treated." (Id.) Of the
mental abilities and aptitudes needed to do unskilled work, Plaintiff was seriously limited but
not precluded in four of the sixteen abilities and aptitudes listed, was unable to meet
competitive standards in six, and had no useful ability to function in the remaining six. (Id.
at 479.) Of the four mental abilities and aptitudes needed to do semiskilled and skilled work,

14

"'Rule out' in a medical record means that the disorder is suspected, but not confirmed – i.e.,
there is evidence that the criteria for a diagnosis may be met, but more information is needed in order
to rule it out." Byes v. Astrue, — F.3d — , 2012 WL 3116243, *5 n.3 (8th Cir. 2012).
- 26 -

Plaintiff was seriously limited but not precluded in two and was unable to meet competitive
standards in two. (Id. at 480.) Of the five mental abilities and aptitudes needed to do
particular types of jobs, Plaintiff was seriously limited but not precluded in one, unable to
meet competitive standards in one, and was unlimited or very good in three: adhere to basic
standards of neatness and cleanliness; travel in unfamiliar places; or use public transportation.
(Id.) His impairments would cause him to be absent from work more than four days a month
and were expected to last at least twelve months. (Id. at 481.)
The ALJ's Decision
Analyzing Plaintiff's application under the Commissioner's five-step evaluation
procedure, the ALJ first found that he met the Act's insured status requirements through
December 31, 2013, and had not engaged in substantial gainful activity since the alleged
onset date of November 27, 2007. (Id. at 12-13.) At step two, the ALJ found that Plaintiff
had "residuals related to left shoulder injuries including rotator cuff tear, partial labral tear,
impingement and acromioclavicular arthrosis." (Id.) He was "reported with anxiety." (Id.)
The ALJ found at step three that these impairments did not, singly or in combination, meet
or medically equal an impairment of listing-level severity. (Id.)
The ALJ then assessed Plaintiff's residual functional capacity (RFC). (Id. at 14.) He
concluded that Plaintiff had the RFC to perform light work15 except he could not climb
ramps, stairs, ropes, ladders, or scaffolds; could not reach higher than waist level; must avoid

15

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b).
- 27 -

all exposure to cold and vibrations; and could have only occasional contact with the public
and co-workers. (Id.) In so finding, the ALJ considered the lack of any evidence to support
Plaintiff's allegations of a disabling mental impairment, noting that (i) a registered nurse
practitioner made the diagnosis of anxiety and prescribed Lexapro the same day Plaintiff's
affect and other indicia of mental status, e.g., judgment and concentration, were described
as normal; (ii) Plaintiff had no ongoing and frequent treatment for mental health complaints
by a psychiatrist, psychologist, medical doctor, or counselor; and (iii) the treatment notes of
Plaintiff's physicians and physical therapists do not include any ongoing mental complaints
or any observations of any symptoms indicative of a mental problems and some include
Plaintiff's denials of mental health related symptoms. (Id. at 14-15.) Also detracting from
Plaintiff's allegations of a severe mental impairment were the findings of Dr. Crane that he
had no evidence of psychotic thought content or thought disorder. (Id. at 15.) And, although
Plaintiff "alleged very poor sleep and significant fatigue," the records did not reflect such and
did reflect no significant loss of strength or fatigue-related atrophy. (Id.) Dr. Crane's
findings of episodes of Plaintiff abruptly falling asleep and being unable to sleep, together
with the effect of such difficulties, were apparently based on Plaintiff's allegations and lacked
support in the record. (Id. at 16.) The ALJ also noted that Dr. Crane did not render a
confirmed medical diagnosis but simply listed diagnoses that should be ruled out. (Id.) Dr.
Crane's assessment of Plaintiff's functional limitations were "grossly inconsistent" with the
lack of a diagnosis and with Plaintiff's treatment notes. (Id.) Accordingly, the ALJ declined
to give any weight to Dr. Crane's conclusions. (Id.)

- 28 -

The ALJ also declined to find that Plaintiff had fibromyalgia, noting that the diagnosis
of Dr. Rickmeyer was apparently based on Plaintiff's report that he had been diagnosed with
such by a Dr. Njince, that Dr. Milne did not render a diagnosis of fibromyalgia after Plaintiff
and his wife gave him a book about such, and that there had been no treatment for or ongoing
diagnosis of fibromyalgia. (Id.) Recognizing that a diagnosis of fibromyalgia cannot be
made based on objective methods, e.g., laboratory tests, the ALJ noted that Plaintiff had not
established that he satisfied the criteria of the American College of Rheumatology for a
diagnosis of fibromyalgia. (Id. at 17.)
Addressing Plaintiff's complaints of disabling left shoulder pain, the ALJ concluded
that the findings and treatment records of Drs. Milne and Lehman and their respective
observations about the lack of an explanation for that pain were inconsistent with Plaintiff's
complaints of "a severe or even medically determinable impairment affecting the left shoulder
. . . ." (Id. at 17-18.) Addressing Plaintiff's complaints of disabling right shoulder pain, the
ALJ noted that there was no "documented history of injury to the right shoulder with an onset
of November 2007." (Id. at 18.) Following surgery in April 2008, the shoulder was fine and
had a good range of motion. (Id.) Moreover, Plaintiff reported that he was "'doing very
well'" and required only infrequent pain medication. (Id. at 18-19.) Medical records of June
2008, July 2008, and October 2008 reflected continued improvement in that shoulder. (Id.
at 19.)
Additionally detracting from Plaintiff's credibility were the lack of any persistent and
adverse medication side effects; the lack of any restrictions, physical or mental, imposed by

- 29 -

Plaintiff's physicians; the absence of any long-term and significant atrophy or loss of muscle
tone; and the lack of any report that Plaintiff was in acute distress, or was exhibiting
significant pain behaviors or signs. (Id. at 19-20.) The ALJ noted that Plaintiff had described
significantly limited daily activities, but also noted that the allegations were "not selfprov[ing]." (Id. at 20.) And, although Plaintiff had a good earning record, any positive effect
of that record on an assessment of his credibility was outweighed by the other considerations
cited. (Id.)
Considering Plaintiff's age (closely approaching advanced age), education, and ability
to communicate in English, Plaintiff was not disabled under the Medical-Vocational
Guidelines regardless of whether he possessed any transferable skills. (Id.) And, considering
his age, education, and RFC, there were jobs described by the VE that he could perform. (Id.
at 21.) Consequently, Plaintiff was not disabled within the meaning of the Act. (Id.)
Additional Records Before the Appeals Council
After the ALJ rendered his adverse decision, Plaintiff submitted additional medical
records to the Appeals Council.
Plaintiff consulted Ms. Hellebusch at Patients First on September 14, 2009, reporting
that the Lexapro was not helping and he was not sleeping well. (Id. at 504-05.) On
examination, he was "positive" for anxiety, appropriate interaction, depression, and
"psychiatric symptoms"; he was negative for, among other things, combativeness, difficulty
concentrating, inability to focus, mood swings, obsessiveness, and sleep disturbances. (Id.
at 504.) He was oriented to time, place, person, and situation and had a normal affect,

- 30 -

insight, judgment, attention span, and concentration. (Id. at 505.) He was not forgetful or
having memory loss. (Id.) His Lexapro dosage was increased, and he was to follow up in
two weeks or sooner if his symptoms did not improve. (Id.) He was to improve his eating
habits and begin walking daily for thirty minutes. (Id.)
At the request of Plaintiff's worker's compensation counsel, Plaintiff was evaluated by
David Volarich, D.O., in November 2009. (Id. at 490-502.) After summarizing, in detail,
Plaintiff's medical records, beginning with a work-related injury to his shoulders in August
1985, Dr. Volarich noted Plaintiff's complaints of ongoing, equal pain in both shoulders. (Id.
at 492-94.) He could not raise his arms overhead without pain and could not throw overhead.
(Id. at 494-95.) Pain radiated from his shoulders to his elbows and numbness radiated to his
right thumb. (Id. at 495.) He had numbness and tingling in all his fingers. (Id.) During the
day, he watched a lot of television; he did not do any household chores and used a riding
mower when cutting the grass. (Id.) He slept for two to three hours a night before shoulder
pain woke him. (Id.) His only medication was Lexapro prescribed by Dr. Crane. (Id. at
496.) He had completed the tenth grade, obtained a General Equivalency Degree (GED), and
had two years of college. (Id.) Dr. Volarich's examination was limited to Plaintiff's upper
extremities. (Id.) Plaintiff had weak shoulder strength, biceps, triceps, and forearms at 4/5.
(Id.) He had diminished pinprick sensation throughout both upper extremities from the neck
into the arms. (Id.) His deep tendon reflexes were 1/4 and symmetric. (Id. at 497.) His gait
was normal, and he was able to fully squat and to stand back upright to an erect position
without difficulty. (Id.) He had a 35-40% loss in motion; impingement testing was

- 31 -

moderately positive. (Id.) He had a normal range of motion at both elbows on flexion,
supination, and pronation, but not on extension. (Id.) Dr. Volarich diagnosed Plaintiff with
internal derangement of the right and left shoulders, persistent right and left shoulder pain,
right shoulder labral tear; and bilateral shoulder impingement and rotator cuff tendonitis. (Id.
at 498-99.) He opined that Plaintiff had a 45% permanent partial disability of the left upper
extremity rated at the shoulder and a 30% permanent partial disability of the right upper
extremity rated at the shoulder. (Id. at 499-500.) He further opined that Plaintiff "may be
able to perform some work activities on a limited basis with" several restrictions, including
needing to avoid all overhead use of the arms, prolonged use of the arms away from the body,
and handling of weights greater than three to five pounds with the arms extended away from
the body or overhead. (Id. at 500-01.) He should minimize pushing and pulling. (Id. at 501.)
Plaintiff returned to Patients First on January 26, 2010, to see Dr. Rickmeyer after
falling the previous month in a department store bathroom. (Id. at 506-09.) Since the fall,
he was having "sudden changes in his demeanor," including becoming very anxious, having
an increased appetite, sleeping until 10:30 a.m. or noon, and having some blurred vision. (Id.
at 506.) A computed tomography (CT) scan of his head revealed no acute intracranial
processes. (Id. at 509.)
Dr. Sigmund saw Plaintiff on April 19 for his left shoulder pain. (Id. at 513-15.)
Plaintiff reported that his right shoulder was "functioning well," but his left was not. (Id. at
513.) That shoulder was continuing to "click, pop and grind" and be painful. (Id.) He had
difficulty trying to reach overhead and to the side. (Id.) Although his strength was

- 32 -

increasing, it still hurt "too much" to lift anything. (Id.) He did not participate in a regular
exercise program. (Id.) On examination, he had difficulty trying to fully abduct his left
shoulder.

(Id.)

An impingement sign was mildly positive.

(Id. at 514.)

His

acromioclavicular joint, clavicle, and sternoclavicular joint were not tender. (Id.) Dr.
Sigmund's diagnosis was of left shoulder pain, weakness, and subacromial bursitis. (Id.) He
opined that Plaintiff would benefit from an arthroscopy of the left shoulder to investigate
what was happening with the rotator cuff and inside part of the articular surface. (Id.)
Plaintiff agreed to proceed. (Id. at 515.)
Legal Standards
Under the Act, the Commissioner shall find a person disabled if the claimant is "unable
to engage in any substantial activity by reason of any medically determinable physical or
mental impairment," which must last for a continuous period of at least twelve months or be
expected to result in death. 42 U.S.C. § 1382c(a)(3)(A). The impairment suffered 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).
The Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010);
Gragg v. Astrue, 615 F.3d 932, 937 (8th Cir. 2010); Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009). "Each step in the disability determination entails a separate analysis and legal
standard." Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006). First, the claimant
- 33 -

cannot be presently engaged in "substantial gainful activity." See 20 C.F.R. § 404.1520(b);
Hurd, 621 F.3d at 738. Second, the claimant must have a severe impairment. See 20 C.F.R.
§ 404.1520(c). A "severe impairment" is "any impairment or combination of impairments
which significantly limits [claimant's] physical or mental ability to do basic work
activities . . . ." Id. Accord Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011); Pelkey v.
Barnhart, 433 F.3d 575, 578 (8th Cir. 2006). Conversely, "[a]n 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 work," i.e., "[it] would have no more than a minimal effect on the claimant's
ability to work . . . ." Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). "Severity is not an
onerous requirement for the claimant to meet, but it is also not a toothless standard . . . ." Id.
at 708 (internal citations omitted).
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. § 404.1520(d) and Part 404, Subpart P, Appendix 1. If the claimant meets these
requirements, he is presumed to be disabled and is entitled to benefits. Warren v. Shalala,
29 F.3d 1287, 1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). "[RFC] is not the ability merely to lift weights occasionally in a doctor's
office; it is the ability to perform the requisite physical acts day in and day out, in the
- 34 -

sometimes competitive and stressful conditions in which real people work in the real world."
Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (internal quotations omitted). Moreover,
"'a claimant's RFC [is] based on all relevant evidence including the medical records,
observations by treating physicians and others, and an individual's own description of his
limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord Partee v.
Astrue, 638 F.3d 860, 865 (8th Cir. 2011). "'The need for medical evidence, however, does
not require the [Commissioner] to produce additional evidence not already within the record.
[A]n ALJ is permitted to issue a decision without obtaining additional medical evidence so
long as other evidence in the record provides a sufficient basis for the ALJ's decision.'"
Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (quoting Anderson v. Shalala, 51
F.3d 777, 779 (8th Cir. 1995)) (second alteration in original).
In determining a claimant's RFC, the ALJ must evaluate the claimant's credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001). This evaluation requires that the ALJ consider "'(1) the claimant's daily
activities; (2) the duration, intensity, and frequency of the pain; (3) the precipitating and
aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant's work history; and (7) the absence of objective
medical evidence to support the claimant's complaints.'" Buckner v. Astrue, 646 F.3d 549,
558 (8th Cir. 2011) (quoting Moore, 572 F.3d at 524, which cited Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984)). "Although 'an ALJ may not discount a claimant's allegations of
disabling pain solely because the objective medical evidence does not fully support them,' the
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ALJ may find that these allegations are not credible 'if there are inconsistencies in the evidence
as a whole.'" Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations and set
forth the inconsistencies in the record which caused the ALJ to reject the claimant's
complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d
1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to his past relevant work,
"review[ing] [the claimant's] [RFC] and the physical and mental demands of the work [claimant
has] done in the past." 20 C.F.R. § 404.1520(e). The burden at step four remains with the
claimant to prove his RFC and establish that he cannot return to his past relevant work.
Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006);
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past relevant
work, the burden shifts at step five to the Commissioner to establish that the claimant
maintains the RFC to perform a significant number of jobs within the national economy. PateFires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258 F.3d 820, 824
(8th Cir. 2001). See also 20 C.F.R. § 404.1520(f). The Commissioner may meet his burden

by eliciting testimony by a VE, Pearsall, 274 F.3d at 1219, based on hypothetical questions
that "'set forth impairments supported by substantial evidence on the record and accepted as
true and capture the concrete consequences of those impairments,'" Jones v. Astrue, 619
F.3d 963, 972 (8th Cir. 2010) (quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th Cir. 2007)).
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If the claimant is prevented by his impairment from doing any other work, the ALJ
will find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above
is conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff,
421 F.3d at 789). When reviewing the record to determine whether the Commissioner's
decision is supported by substantial evidence, however, the Court must consider evidence that
supports the decision and evidence that fairly detracts from that decision. Moore, 623 F.3d
at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The Court may not reverse that
decision merely because substantial evidence would also support an opposite conclusion,
Dunahoo, 241 F.3d at 1037, or it might have "come to a different conclusion," Wiese, 552
F.3d at 730. "'If, [however,] 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, 638 F.3d at 863 (quoting Goff,
421 F.3d at 789). See also Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (the ALJ's
denial of benefits is not to be reversed "so long as the ALJ's decision falls within the available
zone of choice") (internal quotations omitted).

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Discussion
Plaintiff argues that the ALJ erred when assessing his RFC by not basing it on the
medical evidence of record and that this error led to a flawed question to the VE.
The ALJ found that Plaintiff had the RFC to perform light work, e.g., he could lift
twenty pounds at a time and could frequently lift or carry objects weighing up to ten pounds;
could not climb ramps, stairs, ropes, ladders, or scaffolds; could not reach higher than waist
level; must avoid all exposure to cold and vibrations; and could have only occasional contact
with the public and co-workers.
As noted above, "[t]he RFC 'is a function-by-function assessment based upon all of the
relevant evidence of an individual's ability to do work-related activities,' despite his or her
physical or mental limitations." Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir. 2007)
(quoting Social Security Ruling 96-8p, 1996 WL 374184, at *3 (S.S.A. 1996)); accord
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004); Depover v. Barnhart, 349 F.3d
563, 567 (8th Cir. 2003). "When determining a claimant's RFC, the ALJ must consider all
relevant evidence, including the claimant's own description of her or his limitations, as well
as medical records, and observations of treating physicians and others." Roberson, 481 F.3d
at 1023. See also Social Security Ruling 96-8p, 1996 WL 374184 at *5 (listing factors to be
considered when assessing a claimant's RFC, including, among other things, medical history,
medical signs and laboratory findings, effects of treatment, medical source statements,
recorded observations, and "effects of symptoms . . . that are reasonably attributed to a
medically determinable impairment"). An ALJ does not, however, fail in his duty to assess
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a claimant's RFC on a function-by-function basis merely because the ALJ does not address
all areas regardless of whether a limitation is found. See Depover, 349 F.3d at 567. Instead,
an ALJ who specifically addresses the areas in which he found a limitation but is silent as to
those areas in which no limitation is found is believed to have implicitly found no limitation
in the latter. Id. at 567-68. See also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)
("[A]n ALJ is not required to discuss all the evidence submitted, and an ALJ's failure to cite
specific evidence does not indicate that it was not considered.").
In support of his argument that the ALJ erred in his RFC assessment, Plaintiff cites Dr.
Enkvetchakul's July 2007 restriction that Plaintiff work with his left arm at his side and; Dr.
Milne's lifting restrictions, i.e., nor more than ten pounds in August 2007, no more than
fifteen pounds in January 2008, and no more than twenty-five pounds in March 2008, and his
restrictions of no reaching, overhead work, or pushing or pulling with his left arm; Dr.
Strickland's lack of restrictions; and Dr. Volarich's restrictions in November 2009.
Dr. Enkvetchakul treated Plaintiff for left arm pain following his work-related injury
in 2007. After examining Plaintiff, Dr. Enkvetchakul diagnosed him with left arm pain,
prescribed a pain reliever and physical therapy, and restricted Plaintiff to modified duty. Two
visits later, Dr. Enkvetchakul noted Plaintiff's lack of reported improvement, described his
pain complaints as being in "a somewhat bizarre pattern," see Record at 271, noted that the
pain location varied with the motion, and determined that the left shoulder pain was of
uncertain etiology. He last examined Plaintiff in July 2007 – four months before Plaintiff's
alleged disability onset date. Dr. Milne first examined Plaintiff in August 2007. By January
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2008, he had released Plaintiff to return to work with a fifteen-pound lifting restriction and
no reaching, doing overhead work, pushing, or pulling. Two months later, the lifting
restriction was increased to twenty-five pounds – within the ALJ's RFC restrictions – and the
earlier postural limitations were not again imposed. Three months later, in April 2008, Dr.
Milne described Plaintiff as being "neurologically and neurovascularly intact" in both upper
extremities. (See R. at 395.) Plaintiff's passive range of motion in his left shoulder had
increased significantly, e.g., from 90 degrees on forward flexion in August 2007 to 170
degrees.
Thus, if all the evidence is considered, as the ALJ was obligated to do, the ALJ's RFC
is supported by substantial evidence. See Martise, 641 F.3d at 926-27 (ALJ fails in duty to
develop medical record only if the medical records before him to do not provide sufficient
evidence for him to determine whether claimant is disabled). Nor was it less so because Dr.
Strickland did not impose any work-related restrictions when seeing him one time for his right
shoulder pain. Additionally, the Court notes that Dr. Volarich's findings, also relied on by
Plaintiff, were not before the ALJ and were issued pursuant to Plaintiff's worker's
compensation claim at his counsel's request.
Plaintiff also challenges the ALJ's failure to recognize his severe mental impairment,
as evidenced by the report of Dr. Crane. The ALJ declined to give any weight to Dr. Crane's

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conclusions about Plaintiff's mental residual functioning capacity,16 finding them not to be
supported by the record and to be inconsistent with Dr. Crane's lack of a diagnosis.
Plaintiff was evaluated by Dr. Crane at his counsel's request. Describing Plaintiff as
presenting something of a diagnostic "challenge," see Record at 475, Dr. Crane noted that he
had no evidence of psychotic thought content or thought disorder, but did have appropriate
thought content and logical and coherent associations. Plaintiff appeared to be tense, anxious,
and "somewhat depressed." (See R. at 475.) (Emphasis added). Dr. Crane also noted
Plaintiff's report of a diagnosis of ADHD – not mentioned anywhere else in the records – and
his complaints of occasional sleeplessness and inability to concentrate and of depression,
irritability, impulsiveness, and inability to get along with supervisors. Dr. Crane made no
diagnosis; instead, he listed three diagnoses that needed to be ruled out. The omitted
restrictions advocated by Plaintiff are ones that the ALJ found were based on his allegations
and were not otherwise supported by the record.
"A treating physician's17 opinion is given controlling weight if it 'is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [a claimant's] case record.'" Tilley v. Astrue, 580 F.3d 675,
679 (8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)) (alteration in original) (footnote

16

The Court notes that the ALJ's RFC finding that Plaintiff should have only occasional
contact with the public and co-workers did include Dr. Crane's conclusion that Plaintiff was "seriously
limited" in his ability to interact appropriately with the public. (See R. at 480.)
17

Plaintiff describes Dr. Crane as his treating physician. That description is not supported by
the record; however, the issue has not bearing on the outcome of Plaintiff's argument.
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added); accord Halverson, 600 F.3d at 929; Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir.
2009). "[W]hile a treating physician's opinion is generally entitled to substantial weight, such
an opinion does not automatically control because the [ALJ] must evaluate the record as a
whole." Wagner, 499 F.3d at 849 (internal quotations omitted). And, it is permissible for
an ALJ to discount an opinion of a treating physician when it is primarily based on the
claimant's subjective complaints.18 Renstrom, 680 F.3d at 1064; Teague v. Astrue, 638 F.3d
611, 616 (8th Cir. 2011); Kirby, 500 F.3d at 709.
For the foregoing reasons, the ALJ did not err in not incorporating all of Dr. Crane's
conclusions about Plaintiff's mental residual functioning capacity assessments in his RFC.
Plaintiff next argues that the ALJ erred by not including in his hypothetical question
to the VE all the concrete consequences of his impairments. He correctly notes that
hypothetical questions should do so. See Renstrom, 680 F.3d at 1067; Jones, 619 F.3d at
972. "'The ALJ's hypothetical question to the [VE] needs to include only those impairments
that the ALJ finds are substantially supported by the record as a whole.'" Renstrom, 680 F.3d
at 1067 (quoting Martise, 641 F.3d at 927). The question need not incorporate additional
limitations properly disregarded by the ALJ. Id. Such limitations may include those based
on a discounted claimant's subjective complaints and those based on medical opinions that
the ALJ has given less weight to than to others. Id. Accord Perkins v. Astrue, 648 F.3d
892, 902 (8th Cir. 2011); Heino v. Astrue, 578 F.3d 873, 882 (8th Cir. 2009). In the instant
case, the ALJ posed a hypothetical question to the VE that encompassed the concrete
18

Plaintiff does not challenge the ALJ's credibility determination.
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consequences of the impairments he found to be supported by substantial evidence on the
record as a whole. The question was, therefore, proper.
Conclusion
Considering all the evidence in the record, including that which detracts from the ALJ's
conclusions, the Court finds that there is substantial evidence to support the ALJ's decision.
"If substantial evidence supports the ALJ's decision, [the Court] [should] not reverse the
decision merely because substantial evidence would have also supported a contrary outcome,
or because [the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959,
964 (8th Cir. 2010). Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and that this case is DISMISSED.
An appropriate Judgment shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of August, 2012.

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