Lake v. Astrue

Filing 16

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits be AFFIRMED. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Terry I. Adelman on 09/28/2012; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEBORAH LAKE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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No. 4:11CV1615 TIA

MEMORANDUM AND ORDER
This matter is before the Court under 42 U.S.C. §§ 405(g) and 1383(c)(3)for judicial review
of the denial of Plaintiff’s applications for Disability Insurance Benefits under Title II of the Social
Security Act and Supplemental Security Income under Title XVI of the Act. The parties consented
to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I. Procedural History
On July 10, 2009, Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and
Social Security Income (“SSI”). (Tr. 139-53) In her applications, Plaintiff alleged disability
beginning June 5, 2009 due to cumulative trauma to upper extremities, lower back pain, chronic neck
pain, pain in elbows and hands, bipolar disorder, and depression. (Tr. 72, 139, 148) Plaintiff’s
applications were denied on October 26, 2009, after which Plaintiff requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 69-76, 83) On May 26, 2010, Plaintiff appeared and testified
at a hearing in person via video teleconference from Columbia, Missouri. (Tr. 29-68) In a decision
dated July 13, 2010, the ALJ determined that Plaintiff had not been under a disability from June 5,
2009 through the date of the decision. (Tr. 12-24) The Appeals Council denied Plaintiff’s Request

for Review on July 29, 2011. (Tr. 1-3) Thus, the decision of the ALJ stands as the final decision of
the Commissioner.
II. Evidence Before the ALJ
At the hearing before the ALJ, Plaintiff was represented by counsel. The ALJ held the hearing
in Houston, Texas, and Plaintiff testified via video conference from Columbia, Missouri. In an
opening statement, Plaintiff’s attorney stated his belief that Plaintiff met listing 11.08 due to
significant and persistent disorganization of motor function in two extremities which resulted in
sustained disturbance of gross or dexterous movements. Counsel noted significant nerve injury in
both upper extremities. (Tr. 31-33)
Upon questioning by the ALJ, Plaintiff testified that she was born on February 6, 1969 and
received a GED after leaving school after the 9th grade. She was unmarried and had no children
under the age of 18. Plaintiff was able to read but had difficulty writing because her fingers cramped
up. She had a drivers license and was able to drive for about 10 minutes before she experienced
problems with her neck, elbows, and hands. Plaintiff lived by herself in an apartment. She weighed
190 pounds and measured 5 feet 7 inches. In addition, Plaintiff stated that she had not worked since
June 5, 2009. (Tr. 33-35)
Plaintiff further testified that she had problems from fusion surgery in her neck and problems
with her upper extremities. She stated that she could sit for about 20 minutes and stand for 10
minutes before needing to lay down for 30 minutes to an hour. The pain in her neck was so intense,
it caused headaches. In addition, because of problems with her elbows, Plaintiff could not do
repetitive motions or lift over 5 pounds. If she tried to pick up small items, her hands would cramp,
causing her to drop the item. To alleviate pain, Plaintiff used a heating pad, a TENS unit, and a
2

massager. She also took Percocet, Skelaxin, Naprosyn, and Neurontin. The medications caused
drowsiness, dizziness, and lightheadedness. On an average day, the pain in Plaintiff’s neck was an
8 out of 10. On a bad day, the pain was a 9 or 10. She did not have good days when the pain was
at a level less than 8. Further, she testified that she had bad days three to four times a week. Plaintiff
saw her doctor, who prescribed medication for the pain. (Tr. 35-39)
In addition, Plaintiff stated that the pain in her neck radiated down her arms and to her hands,
causing her to have problems holding things. Plaintiff was able to dress herself but had trouble with
buttons. She also had difficulty tying bows. She did not use a computer and testified that she last
used a computer when she was working in May 2006. Plaintiff did not have a cell phone but was able
to use her home phone. She testified to experiencing difficulty picking up and holding small items
like coins and paperclips, as well as dishes, glasses, and plates. She used paper plates and soda cans.
(Tr. 39-41)
Plaintiff further stated that she was depressed, and the depression was worsening. She was
unmotivated and had trouble concentrating. Further, Plaintiff did not like to be around people
because they irritated and upset her. She also started crying, and had days when she could not get
out of bed. Plaintiff had been seeing a psychiatrist for a year and a half. She first saw the doctor
every three months. Since her depression worsened, however, Plaintiff saw the doctor once a month.
Plaintiff took Cymbalta, Abilify, Elavil, Prozac, and Lithium for her mental impairments. Despite
psychiatric treatment and medication, Plaintiff’s depression has stayed the same. Plaintiff also saw
another doctor, Dr. Choudhary, for pain. (Tr. 41-43)
During the night, Plaintiff slept about 7 restless hours. She woke up around 7:00 a.m and lay
in bed for another hour. Plaintiff then washed her face, brushed her teeth, fixed something to eat,
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took her medications, and lay down again for about an hour. Plaintiff then used her TENS unit and
cleaned the kitchen before laying down again. Plaintiff’s mom would come over to check on her and
motivate her to get moving. Plaintiff was able to do dishes, laundry, and household chores. In
addition, she went to the grocery store, but could only do light shopping. Plaintiff used to enjoy
reading. One of her doctors recommended exercises to stretch and strengthen muscles, and she
testified that she tried to do them. Plaintiff believed she could lift 5 pounds and walk for 10 minutes
before requiring a break. (Tr. 43-46)
Plaintiff’s attorney also questioned her regarding her pain. She described the neck pain as
tightness in the back and sharp, stabbing pain. The stabbing pain was constant and was located near
her surgery site. The pain radiated down her arms and into her hands and also caused headaches.
Plaintiff also experienced shooting and stabbing pains in her shoulders, arms, and hands. She had
trouble using her arms to reach in front while washing dishes repetitively. Plaintiff stated that she had
surgery on both elbows and a carpal tunnel release on the right hand. Plaintiff could move her head
up and down but had problems twisting her head from side to side. Keeping her head in one position
aggravated her condition. For instance, if she looked down for 5 minutes, her neck would start
hurting. (Tr. 46-49)
Plaintiff also had headaches at least once a week, sometimes more. The neck pain caused the
headaches. Plaintiff opined that her ability to do things was much slower than before. She estimated
she could now work at half the speed. In addition, she did not want to be around people because she
became irritated with them. (Tr. 49-50)
A vocational expert (“VE”), Karen E. Nielsen, Ph.D., also testified at the hearing. The VE
classified Plaintiff’s past work as a customer service clerk at a dental insurance company as sedentary
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and semi-skilled. The ALJ then asked the VE to assume an individual of the same age, education,
and work experience of Plaintiff. The individual could lift 25 pounds frequently and 50 pounds
occasionally; stand and walk six hours; sit for six hours; occasionally work around ropes, ladders, or
scaffolds; and avoid concentrated exposure to cold and vibration. Given this hypothetical, the person
could perform Plaintiff’s past work. (Tr. 50-52)
The ALJ then changed the hypothetical to an individual who could lift 10 pounds frequently
and 20 pounds occasionally; stand and walk six hours; sit for six hours; frequently push and pull with
the bilateral upper extremities; occasionally climb; occasionally work around ropes, ladders, or
scaffolds; occasionally reach overhead with bilateral upper extremities; and avoid concentrated
exposure to cold and vibration. Given this scenario, such person could also perform Plaintiff’s past
relevant work. If the ALJ added that the person could understand, remember, and carry out only
simple instructions; use judgment and respond appropriately to supervision and co-workers in the
usual work situations; and deal with changes in a routine work setting, the individual could not
perform Plaintiff’s past work. However, such person could work as an office helper, office cleaner,
and mail clerk. These jobs were light, unskilled, and existed in significant numbers in the national and
state economies. (Tr. 52-53)
However, if the individual experienced frequent headaches as described by Dr. Choudhary,
one to two per week lasting most of the day, the person could not perform Plaintiff’s past work.
Likewise, if the person had limitations to frequent fingering, she could perform past work. However,
if she suffered pain and had to lay down for 3 to 4 hours, then the individual could not work. (Tr.
54)

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Plaintiff’s attorney also questioned the VE regarding Plaintiff’s past relevant work. The VE
stated that Plaintiff’s job as a customer service clerk required frequent reaching and handling. With
regard to two of the jobs the VE listed – office helper and mail clerk – these jobs required the use of
arms but not reaching overhead. However, office cleaner required frequent reaching. Further, if the
VE reconsidered hypothetical one with the added restrictions of limited concentration and focus due
to pain, side effects of medication, and depression and anxiety requiring redirection by a supervisor
several times a day, the individual could not perform Plaintiff’s past work. If her persistence or pace
was only 2/3 of the pace of an unskilled worker, the person could not perform any of the jobs the VE
listed. Further, if the individual possessed the limitations set forth in Dr. Choudhary’s medical source
statement, mental, which set forth moderate limitations, she could not perform Plaintiff’s past work
but would be able to perform the full range of unskilled work. However, if the individual missed 30%
of time, she could not perform any work. (Tr. 55-61, 66-67)
Finally, Plaintiff’s attorney objected to the reliability of the VE’s testimony and objected to
the number of jobs, arguing that the VE did not cite jobs existing in significant numbers. The ALJ
overruled the objections. (Tr. 62-68)
In a Disability Report – Adult, Plaintiff reported that she had trouble sitting or standing. She
experienced pain with any repetitive activity using her hands. When her pain flared up, she was down
for days, and she felt down and unhappy all the time. Plaintiff also reported crying a lot and feeling
useless. Plaintiff stated that she stopped working on May 15, 2006 and quit because of pain. (Tr.
166-67)
In a Function Report – Adult dated July 27, 2009, Plaintiff stated that a typical day consisted
of preparing meals, taking medications, resting, using the TENS unit for 30 minutes at a time,
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cleaning the house, and watching TV. She had problems sleeping due to pain. She had no problems
with personal care, although she was limited in caring for her hair due to pain in elbows and cramping
in fingers. Plaintiff went outside several times a week. She was able to drive but usually asked her
daughter or mother to drive because of pain in upper extremities. Plaintiff shopped for groceries or
household items once or twice a week. She spent about 30 minutes at a time but took breaks.
Plaintiff was able to take care of finances; however, she had limited writing due to increased pain and
cramping in fingers. She enjoyed reading and watching TV, but she needed to lay down and relax
about every 15 minutes. Socially, Plaintiff talked on the phone daily a few minutes at a time and did
light shopping once a week. Plaintiff did not require someone to accompany her when shopping. She
socialized more in the past, but depression decreased her social activities. In addition, she no longer
attended church due to pain from sitting. (Tr. 177-82)
Plaintiff further reported that her condition affected her ability to lift, squat, bend, stand,
reach, walk, sit, kneel, stair climb, concentrate, and use hands. She specified that she could lift no
more than 5 pounds and stand for about 10 to 15 minutes before needing to rest. Increased pain
limited her ability to squat and bend. In addition, she could not reach repetitively due to elbow pain.
Sitting was limited to 15 minutes, and she experienced increased pain in her neck and lower back
when stair climbing. When she used her hands repetitively, they would cramp. Plaintiff could follow
written and spoken instructions and get along with authority figures. However, pain interrupted her
attention. She was unable to handle stress, which caused more pain and fatigue. Changes in routine
caused upset and disturbance. Plaintiff further reported that she used a prescribed neck brace and
wrist brace when her pain flared up. (Tr. 182-84)

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Plaintiff’s daughter, Ashley Jackson, also completed a Function Report Adult – Third Party
on August 2, 2009. She stated that Plaintiff’s day consisted of getting up, making breakfast, eating,
laying down, doing dishes, laying down, cleaning house, laying down, using stimulator, making
dinner, laying down, cleaning kitchen, using stimulator, laying down, and going to bed. Plaintiff used
to be able to work, socialize, and walk for long periods. Ms. Jackson reported that Plaintiff made
sandwiches, easy food, and microwave meals daily. Plaintiff could also do laundry and light house
cleaning, as well as shop for household items and groceries. Ms. Jackson’s report essentially mirrored
Plaintiff’s report. (Tr. 188-95)
III. Medical Evidence
On July 31, 2007, Plaintiff underwent a left cubital tunnel release with partial submuscular
anterior transposition and Z-plasty lengthening of the forearm flexor fascia. (Tr. 361) On June 3,
2008, Plaintiff saw Dr. Amtul Sami, M.D., at the Pain Clinic Department at Ellis Fischel Cancer
Center. She reported pain in her neck, elbows, and hands. She further reported that her left elbow
nerve release had helped, but the symptoms came back. She rated her pain as an eight out of ten, and
she also experienced numbness and weakness in her elbows, arms, and fingers. While sitting,
walking, standing, and bending aggravated this pain, lying down and changing positions decreased
her pain. Review of systems was positive for headache and neck pain. Physical examination of the
neck revealed an anterior fusion scar at C5-C7, which was well healed. In addition, Dr. Sami noted
a rigid and long surgical scar in the cervical area, which was well healed. Plaintiff had a palpable
buffalo hump in the neck where the neck and shoulders were mildly tender. Palpation of the occipital
ridge showed positive tenderness in the right occipital area. Dr. Sami prescribed

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medication and advised Plaintiff to return to the pain clinic for a right occipital nerve block. (Tr. 20608)
Plaintiff returned to Dr. Sami through September 2008. She received occipital nerve blocks
on June 17 and July 11. During a follow up visit on August 11, 2008, Plaintiff reported doing badly
after the last shot, with pain in the left forehead and right neck. She also stated that pain medication
did not help, and she requested antidepressants. Dr. Sami noted that Plaintiff was smiling and sitting
comfortably in her chair. She had bouts of laughing and crying and was very concerned about not
getting Effexor. She appeared irritable with a flat affect. Upon examination, Plaintiff’s neck range
of motion was complete in flexion/extension and lateral rotation. Palpation revealed marked muscle
spasm around the neck and generalized mild tenderness on both sides of her cervical spine. Dr. Sami
opined that Plaintiff’s history and physical examination were consistent with failed cervical spine
surgery, head and neck pain, and depression. Dr. Sami noted that Plaintiff was scheduled for a
psychiatric consultation on September 5, 2008. He recommended that Plaintiff continue prescription
medications, confer with her primary care doctor on starting Effexor, and return to the pain clinic in
3 to 4 weeks. (Tr. 210-22)
On September 8, 2008, Plaintiff returned to Dr. Sami. She saw Dr. Beitman for a
psychological consult a few days before. Palpation of the neck showed mild generalized tenderness
in the neck and shoulders but no trigger or tender points. Deep tendon reflexes were +2/5 in both
upper extremities with no loss of sensation. Motor strength was +5/5. Dr. Sami assessed cervical
fusions time 2 with complaints of head and neck pain. He ordered an x-ray of the cervical spine and
a CT scan. When Dr. Sami examined Plaintiff on September 22, 2008, he noted mild tenderness to

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palpation in the lower cervical region with limited extension. Dr. Sami noted that he had no further
recommendation. (Tr. 223-28)
On November 22, 2008, Plaintiff saw a nurse practitioner at Healthnet Regional Center and
reported back strain and headaches. On December 6, 2008, Plaintiff stated that she was still
experiencing pain in the neck and shoulder, which she described as tight and shooting pain. In
addition, Plaintiff stated that past occipital nerve blocks helped her headaches in the past. She was
considering having surgery. The nurse practitioner educated Plaintiff on using a transcutaneous
electrical nerve stimulation (“TENS”) unit to assist with her pain. (Tr. 369-70)
Between November 2008 and June 2009, Lake sought treatment for her neck pain
nine times at Healthnet and Missouri Baptist Hospital. X-rays showed postoperative changes in the
cervical spine, but the fusion and hardware fixation at the C5-C7 level was within expected limits.
(Tr. 230-40)
Plaintiff saw Diane Mueller, APRN, at the Columbia Regional Hospital on July 6, 2009 for
complaints of neck pain. She also reported intermittent pain in her elbows radiating into her
forearms, as well as headaches. She rated the pain in her neck as 8 out of 10. Raising her arms and
moving her neck increased the pain. While she did not have significant weakness in her hand grips,
she expressed difficulty with fine motor tasks. Physical examination revealed no acute distress, with
full range of motion in her neck and no tenderness to palpation through her posterior cervical spine.
The impression was neck pain with specific etiology unclear. Nurse Mueller recommended cervical
x-rays, CT scan, and MRI. X-rays of the cervical spine revealed C2-C3 and C3-C4 borderline
abnormal subluxation between extension and flexion. A CT scan and MRI performed on July 27,

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2009 revealed solid disc fusion in C5 to C7 with no high grade compression of the neural foramina
or neural canal. The tests did reveal some degenerative changes. (Tr. 255-72)
On August 27, 2009, Thomas J. Spencer, Psy.D., performed a psychological evaluation and
diagnosed Plaintiff with major depressive disorder, recurrent, moderate to severe; alcohol abuse and
bipolar disorder by history; and a GAF score of 50-55. Dr. Spencer opined that Plaintiff had a mental
illness that continued to interfere with her ability to engage in employment. (Tr. at 312-316)
Dr. Saleh Parvez saw Plaintiff on December 28, 2009 for complaints of depression, increased
appetite, low motivation and energy, and trouble sleeping. Dr. Parvez diagnosed severe major
depressive disorder, severe and without psychosis. He also increased Plaintiff’s Elavil dosage and
changed her Cymbalta to a morning dosage. (Tr. 323-24) Dr. Parvez saw Plaintiff again in March
2010 and May 2010 for continued depression. (Tr. at 468-69).
On January 22, 2010, Dr. Ahktar Choudhary, M.D., a neurologist at Rolla Neurology,
examined Plaintiff for continued neck pain and headaches. Plaintiff reported increasingly worse neck
pain with pain radiating to her right arm. She also reported numbness, tingling, and weakness in both
arms with difficulty holdings things. She rated the pain as an eight out of ten. In addition, she
experienced two headaches per week, which were severe. On examination, Dr. Choudhary observed
that Plaintiff’s muscle tone was normal. She had decreased strength in her grip and right upper
extremities, but the rest of her muscles were normal. Pin prick sensation was decreased in
distribution of C6 on the right. Dr. Choudhary also noted cervical radiculopathy, mild weakness in
hand grip, rule out carpel tunnel syndrome. Dr. Choudhary continued her current medication, added
Topamax, and recommended nerve conduction studies. (Tr. 333-34)

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On February 23, 2010, Plaintiff underwent a nerve conduction study which was normal. Dr.
Choudhary diagnosed her with cervical radiculopathy. (Tr. 329-32) Dr. Choudhary saw Plaintiff on
March 23, April 20, and May 18, 2010 for neck pain and continued to diagnose her with cervical
radiculopathy. (Tr. 328, 474-75)
Dr. Choudhary completed three opinion forms regarding Lake’s functional capabilities in April
2010, including a Medical Source Statement – Physical, Medical Source Statement – Mental, and
a Migraine Questionnaire. Dr. Choudhary opined that Plaintiff could lift and/or carry 10 pounds
frequently and 20 pounds occasionally. She could stand and/or walk for 1 hour continuously and 5
hours with usual breaks. In addition, Plaintiff was able to sit for 2 hours continuously and sit for 6
hours with usual breaks. Her ability to push and/or pull was limited in that heavy pushing and pulling
could aggravate the neck pain. Dr. Choudhary also opined that Plaintiff could occasionally climb,
balance, stoop, reach, and handle. Further, she needed to avoid some exposure to environmental
factors. Dr. Choudhary stated that Plaintiff needed to lie down every three to four hours for ten to
fifteen minute breaks and noted that her pain medication could cause drowsiness and decreased
concentration. Additionally, Dr. Choudhary opined that Lake had moderate limitations in her ability
to understand and remember detailed instructions, ability to carry out detailed instructions, ability to
perform activities within a schedule, and ability to complete a normal workday and workweek without
interruption from psychologically based symptoms. Finally, Dr. Choudhary stated that while
Plaintiff’s migraines were mostly controlled by her medication, she experienced headaches one to two
times per week, which lasted most of the day and prevented her from functioning if severe. (Tr. at
336-342)

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In February 2010, Dr. Gilbert Lang, completed his eighth report since April 2006 regarding
Plaintiff’s medical history and functional capacity. The evaluations were in regard to a worker’s
compensation claim and based on history of the injury, physical examination, Plaintiff’s complaints,
and prior medical records. Dr. Lang opined that Plaintiff’s headaches were severe for about 2 hours
twice a week and would further increase with significant flexion, extension, or heavy lifting. He
precluded the right upper extremity from heavy or repetitive above head work, heavy lifting,
repetitive forceful grasping, prolonged work with small items, or prolonged keyboarding or writing.
He also limited her left upper extremity from repetitive or heavy above head work, repetitive forceful
grasping, and prolonged keying. Dr. Lang noted positive objective findings with regard to Plaintiff’s
neck but not her headaches, and was limited in her ability to perform lifting, grasping, fine
manipulation, prolonged writing and keyboarding, and overhead work. (Tr. 372-400, 401-466)
IV. The ALJ’s Determination
In a decision dated July 13, 2010, the ALJ found that the Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2011. She had not engaged in
substantial gainful activity since June 5, 2009, her alleged date of onset. Further, the ALJ determined
that Plaintiff had the severe impairments of degenerative disc disease with chronic pain and
depression, which was aggravated by chronic pain. The ALJ assessed Plaintiff’s medical and
psychiatric records in making this determination. In addition, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 12-18)
After considering the record, the ALJ determined that the Plaintiff had the RFC to perform
somewhat less than the full range of light work. Specifically, the ALJ found that Plaintiff could lift,
13

carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand, walk, and sit for 6
hours in a usual work day with normal breaks; frequently push and pull with upper extremities;
occasionally climb stairs, ramps, ladders, scaffolds, and ropes; occasionally reach overhead with both
upper extremities; and understand, remember, and carry out simple instructions. She needed to avoid
concentrated exposure to cold and vibration. The ALJ considered the medical statements from Dr.
Choudhary in reaching this decision. In addition, the ALJ noted that Plaintiff’s reports of her
symptoms were not supported by the medical evidence. (Tr. 18-22)
The ALJ found that Plaintiff could not return to her past relevant work. However, based on
her younger age, high school diploma, work experience, and RFC, jobs existed in significant numbers
in the national economy which Plaintiff could perform. The ALJ relied on the VE’s testimony to find
Plaintiff could work as an office helper, office cleaner, and mail clerk. The ALJ thus concluded that
Plaintiff had not been under a disability as defined in the Social Security Act from June 5, 2009
through the date of the decision. (Tr. 22-23)
V. Legal Standards
A claimant for social security disability benefits must demonstrate that he or she suffers from
a physical or mental disability. 42 U.S.C. § 423(a)(1). The Social Security Act defines disability as
“the inability to do any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period not less than 12 months.” 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(b)-(f). Those steps require a claimant to show: (1) that
she is not engaged in substantial gainful activity; (2) that she has a severe impairment or combination
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of impairments which significantly limits her physical or mental ability to do basic work activities; or
(3) she has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R., Subpart
P, Appendix 1; (4) she is unable to return to her past relevant work; and (5) her impairments prevent
her from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a reasonable
mind might find it adequate to support the conclusion.’” Cruse v. Chater, 85 F. 3d 1320, 1323 (8th
Cir. 1996) (quoting Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). The Court does not re-weigh
the evidence or review the record de novo. Id. at 1328 (citing Robinson v. Sullivan, 956 F.2d 836,
838 (8th Cir. 1992)). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner’s decision if it is supported by substantial
evidence. Id. at 1320; Clark v. Chater, 75 F.3d 414, 416-17 (8th Cir. 1996).
To determine whether the Commissioner’s final decision is supported by substantial evidence,
the Court must review the administrative record as a whole and consider: (1) the credibility findings
made by the ALJ; (2) the plaintiff’s vocational factors; (3) the medical evidence from treating and
consulting physicians; (4) the plaintiff’s subjective complaints regarding exertional and non-exertional
activities and impairments; (5) any corroboration by third parties of the plaintiff’s impairments; and
(6) the testimony of vocational experts when required which is based upon a proper hypothetical
question that sets forth the plaintiff’s impairment(s). Stewart v. Secretary of Health & Human Servs.,
957 F.2d 581, 585-586 (8th Cir. 1992); Brand v. Secretary of Health Educ. & Welfare, 623 F.2d 523,
527 (8th Cir. 1980).

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The ALJ may discount plaintiff’s subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and set
forth the inconsistencies in the record. Marciniak v. Shalala, 49 F.3d 1350, 1354 (8th Cir. 1995). It
is not enough that the record contain inconsistencies; the ALJ must specifically demonstrate that he
or she considered all the evidence. Id. at 1354; Ricketts v. Secretary of Health & Human Servs., 902
F.2d 661, 664 (8th Cir. 1990).
When a plaintiff claims that the ALJ failed to properly consider subjective complaints, the duty
of the Court is to ascertain whether the ALJ considered all of the evidence relevant to plaintiff’s
complaints under the Polaski1 standards and whether the evidence so contradicts plaintiff’s subjective
complaints that the ALJ could discount his testimony as not credible. Benskin v. Bowen, 830 F.2d
878, 882 (8th Cir. 1987). If inconsistencies in the record and a lack of supporting medical evidence
support the ALJ’s decision, the Court will not reverse the decision simply because some evidence may
support the opposite conclusion. Marciniak 49 F.3d at 1354.
VI. Discussion
In her Brief in Support of the Complaint, Plaintiff argues that the ALJ’s decision is not
supported by substantial evidence because the ALJ failed to give controlling weight to Dr.
Choudhary, Plaintiff’s treating physician; failed to properly assess Plaintiff’s RFC by not giving proper
weight to the treating physician, not including limitations from non-severe impairments, and not
evaluating Dr. Lang’s opinion; and failing to conduct a proper credibility analysis. The Defendant,

1

The Polaski factors include: (1) the objective medical evidence; (2) the subjective
evidence of pain; (3) any precipitating or aggravating factors; (4) the claimant’s daily activities;
(5) the effects of any medication; and (6) the claimants functional restrictions. Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984).
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on the other hand, asserts that the ALJ properly evaluated Plaintiff’s credibility in determining her
RFC; properly considered the opinions of Plaintiff’s treating physicians; and properly determined
Plaintiff’s RFC. The undersigned finds that substantial evidence supports the ALJ’s decision.
A. Opinion of the Treating Physician
Plaintiff first contends that the ALJ failed to give controlling weight to Dr. Choudhary,
Plaintiff’s treating physician. Specifically, he argues that Dr. Choudhary’s opinion regarding
Plaintiff’s limitations was consistent with treatment notes, the record as a whole, and Plaintiff’s
testimony such that the opinion was entitled to controlling weight. Defendant asserts that the ALJ
considered Dr. Choudhary’s opinions and properly discounted those opinions that were inconsistent
with the record.
“A treating physician’s opinion should not ordinarily be disregarded and is entitled to
substantial weight . . . provided the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record.” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (citations omitted). However, “an ALJ
may discount such an opinion if other medical assessments are supported by superior medical
evidence, or if the treating physician has offered inconsistent opinions.” Holstrom v. Massanari, 270
F.3d 715, 720 (8th Cir. 2001) (citation omitted). Further, “[i]t is appropriate to give little weight to
statements of opinion by a treating physician that consist of nothing more than vague, conclusory
statements.” Swarnes v. Astrue, Civ. No. 08-5025-KES, 2009 WL 454930, at *11 (D.S.D. Feb. 23,
2009) (citation omitted).

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Contrary to Plaintiff’s position, the ALJ gave controlling weight to the majority of Dr.
Choudhary’s opinion regarding Plaintiff’s limitations. For instance, the ALJ adopted Dr. Choudhary’s
lifting and carrying limitations, which were 10 pounds frequently and 20 pounds occasionally, with
no heavy pushing or pulling.2 (Tr. 19, 338) Further, the ALJ limited Plaintiff to occasionally climbing
stairs, ramps, ladders, scaffolds, and ropes, as well as reaching over head. This essentially mirrors
Dr. Choudhary’s opinion. (Tr. 339) In addition, while the Plaintiff contends that the ALJ did not
give substantial weight to Dr. Choudhary’s limitations regarding sitting, standing/walking, and
handling things. The record shows that the ALJ did consider these limitations and explicitly noted
that none of Dr. Choudhary’s treatment records or diagnostic testing demonstrated any impairment
to Plaintiff’s lower back or lower extremities. Plaintiff has failed to point to any objective medical
evidence or diagnosis that supports any impairment to the low back or legs or handling. To the
contrary, nerve conduction studies were normal, and Dr. Choudhary assessed only mild weakness in
Plaintiff’s muscle strength of hand grips and upper extremities. (Tr. 331, 334) As stated above, the
ALJ may discount an inconsistent opinion where the treating physician has offered inconsistent
opinions. See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (stating an ALJ may discount
or disregard a treating physician’s opinion where the “treating physician renders inconsistent opinions
that undermine the credibility of such opinions . . .”) (citation omitted). In addition, the ALJ found
that, consistent with Dr. Choudhary’s limitation to sitting for 2 hours at a time, light work includes
normal breaks every 2 hours. (Tr. 19) The ALJ also found that Plaintiff’s

2

The ALJ limited pushing and pulling to 10 pounds frequently and 20 pounds
occasionally. (Tr. 19)
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need for 10 to 15 minute breaks every 3 to 4 hours per Dr. Choudhary’s opinion was consistent with
normal breaks in work days. (Tr. 20)
Plaintiff also argues that the ALJ erred in affording little weight to Dr. Choudhary’s opinion
regarding Plaintiff’s mental limitations. However, the ALJ correctly notes that Dr. Choudhary was
not Plaintiff’s mental health care provider. Despite this fact, the ALJ did give some weight to Dr.
Choudhary’s opinion and limited Plaintiff to simple instructions and tasks. (Tr. 20, 341) The ALJ
may give less weight to a treating physician rendering an opinion on an impairment the physician did
not treat. See 20 C.F.R. § 404.1527(c)(2)(ii) (“For example, if your ophthalmologist notices that you
have complained of neck pain during your eye examinations, we will consider his or her opinion with
respect to your neck pain, but we will give it less weight than that of another physician who has
treated you for the neck pain.”).
Finally, with regard to headaches, while Dr. Choudhary stated that Plaintiff experienced
headaches once or twice a week which lasted most of the day and could render her unable to function,
he also stated they were mostly controlled by medication. (Tr. 336) An impairment that can be
controlled by medication cannot be considered disabling. Schultz v. Astrue, 479 F.3d 979, 983 (8th
Cir. 2007) (citation omitted). Further, Plaintiff did not list headaches as a disabling limitation on her
Disability Report, and she provided only cursory attention to headaches in her testimony. (Tr. 49)
Dr. Choudhary noted Plaintiff’s complaints of headaches in his treatment records but did not order
migraine testing or headache-specific treatment. See Slack v. Astrue, No. 4:07CV1655 RWS, 2009
WL 723832, at *15 (E.D. Mo. March 17, 2009) (finding that conservative or minimal treatment
militated against a disability finding) (citation omitted). Thus, the undersigned finds that the ALJ
properly assessed Dr. Choudhary’s opinion in this case.
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B. Plaintiff’s RFC
Plaintiff next asserts that the ALJ erred in determining Plaintiff’s RFC because he did not
provide a narrative discussion describing how the evidence supported the RFC determination.
Defendant maintains that the ALJ arrived at the decision by evaluating the entire record, discussing
the medical evidence, and including only those limitations supported by the record. The undersigned
agrees with the Defendant.
The ALJ explicitly stated that Plaintiff could perform light work with further limitations,
which he thoroughly discussed in a narrative opinion. (Tr. 19-22) As stated above, the ALJ assessed
Dr. Choudhary’s opinion and gave that opinion proper weight. With regard to Dr. Lang, the ALJ
noted that the report appeared to be in response to litigation. Further, much of the report relies on
past medical history and Plaintiff’s subjective complaints, as opposed to objective medical testing.
The physical examination was mostly consistent with the ALJ’s RFC finding. For instance, Dr. Lang
noted no positive objective findings for Plaintiff’s headaches. (Tr. 396) Further, he precluded the
right upper extremity from heavy or repetitive above head work, heavy lifting, repetitive forceful
grasping, prolonged work with small items, or prolonged keyboarding or writing. He also limited her
left upper extremity from repetitive or heavy above head work, repetitive forceful grasping, and
prolonged keying. The RFC finding included lifting/carrying/pushing/pulling at only the light level
and limited her to only occasional reaching overhead. (Tr. 19) With regard to Plaintiff’s allegations,
and Dr. Lang’s opinion, that Plaintiff was unable to handle objects, the ALJ properly discounted Dr.
Lang’s opinion, as the opinion was conclusory and unsupported by objective medical evidence. See
Swarnes, 2009 WL 454930, at *11 (citation omitted).

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Review of the record demonstrates that the ALJ properly determined Plaintiff’s RFC by
providing a narrative discussion of the medical evidence and describing how the evidence supported
the decision. To the extent, that the ALJ discounted the opinions of Dr. Choudhary and Dr. Lang,
the undersigned finds that those opinions were inconsistent with the evidence and conclusory. See
Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010) (upholding the ALJ’s determination that the
physician’s opinions were not entitled to controlling weight because they were inconsistent with and
unsupported by the medical record, including the doctor’s own treatment notes). Therefore,
substantial evidence supports the ALJ’s RFC determination.
C. Credibility Analysis
Last, the Plaintiff argues that the ALJ failed conduct a proper credibility analysis by
disregarding Plaintiff’s subjective complaints. Defendant contends that the ALJ properly considered
Plaintiff’s testimony, the lack of objective medical evidence, medical reports pertaining to Plaintiff’s
restrictions, Plaintiff’s treatment, and the effectiveness of the treatment in assessing Plaintiff’s
credibility. The undersigned agrees with the Defendant.
The ALJ has the duty to make credibility findings. Dukes v. Barnhart, 436 F.3d 923, 928 (8th
Cir. 2006) (citation omitted). In making a credibility determination, the ALJ must explain, based on
the record as whole, why the plaintiff’s claims are not credible. Id. (citations omitted). Here, the ALJ
considered Plaintiff’s subjective reports regarding her symptoms and noted the degenerative disease
in her neck which might cause radicular symptoms. However, nerve conduction studies were normal.
In addition, Dr. Choudhary assessed only mild weakness in hand grip and right upper extremities.
Although the ALJ may not discount allegations of disabling pain

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based solely on the lack of objective medical evidence, the lack of such evidence is a factor the ALJ
may consider. Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (citation omitted).
Further, the record shows that Plaintiff’s daily activities are inconsistent with her allegations
of disabling pain. Plaintiff reported that she was able to prepare meals, clean the house, watch TV,
drive, attend to personal care, shop, and socialize. “Inconsistencies between subjective complaints
of pain and daily living patters diminish credibility.” Haley v. Massanari, 258 F.3d 742, 748 (8th Cir.
2001) (citation omitted). In short, the ALJ considered all of the evidence in the record, including the
medical evidence and Plaintiff’s subjective complaints, and found that, while the impairments could
cause some of the alleged symptoms, they did not limit Plaintiff to the extent alleged.3 Therefore, the
Court finds that substantial evidence supports the ALJ’s determination that Plaintiff was not disabled
at any time from June 5, 2009, through the date of the decision.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying social
security benefits be AFFIRMED. A separate Judgment in accordance with this Memorandum and
Order is entered this same date.
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of September, 2012.

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The undersigned notes that, while the ALJ mentions the regulations setting forth the
criteria for making credibility determinations, he does not specifically address each of the factors.
However, the record demonstrates that the ALJ applied the criteria to discount Plaintiff’s
complaints of pain. “‘Although specific delineations of credibility findings are preferable, an
ALJ’s arguable deficiency in opinion-writing technique doe not require [the court] to set aside a
finding that is supported by substantial evidence.’” Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir.
1996) (quoting Carlson v. Chater, 74 F.3d 869, 871 (8th Cir. 1996)).
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