Avouris v. Social Security Administration
Filing
19
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Commissioner's decision is affirmed, and plaintiff's Complaint is dismissed with prejudice. Signed by Magistrate Judge Frederick R. Buckles on 8/16/13. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MAUREEN B. AVOURIS,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,1 Commissioner )
of Social Security,
)
)
Defendant.
)
Case No. 4:11CV1793 FRB
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Maureen B.
Avouris’s appeal of an adverse decision of the Social Security
Administration.
All matters are pending before the undersigned
United States Magistrate Judge, with
consent of the parties,
pursuant to 28 U.S.C. § 636(c).
I.
Background and Procedural History
On April 26, 2010, plaintiff applied for Disability
Insurance Benefits (“DIB”) under Title II of the Act, alleging
disability
beginning
September
18,
2009.
(Administrative
Transcript (“Tr.”) 105-11).
Plaintiff’s application was denied, (Tr. 54-58), and she
requested a hearing before an administrative law judge (“ALJ”).
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should
therefore be substituted for Michael J. Astrue as the defendant
in this case. No further action needs to be taken to continue
this suit by reason of the last sentence of 42 U.S.C. § 405(g).
- 1 -
(Tr. 61-62).
On April 13, 2011, a hearing was held before an ALJ
(Tr. 20-45), and the ALJ issued an unfavorable decision on February
7, 2011.
(Tr. 5-19).
Plaintiff
defendant
sought
agency’s
review
Appeals
of
Council,
the
ALJ’s
which
request for review on September 1, 2011.
decision
denied
with
plaintiff’s
(Tr. 1-4).
The ALJ’s
decision thus stands as the Commissioner’s final decision subject
to review in this Court.
II.
A.
42 U.S.C. § 405(g).
Evidence Before the ALJ
Plaintiff’s Testimony
Responding to questions from the ALJ, plaintiff testified
that she was 54 years of age, and that she had finished high school
and
obtained
(“CNA”).
certification
as
a
certified
nurse’s
assistant
Plaintiff described past work in telephone sales, home
health care, customer service, and telemarketing.
(Tr. 24-25).
Plaintiff testified that she stopped working in 2009 because of a
fall and lower lumbar back pain.
(Tr. 25-26).
Plaintiff testified that she had applied for unemployment
benefits, and when doing so represented that she was ready, willing
and able to work.
(Tr. 26).
When asked whether that was true,
plaintiff replied “[s]ometimes it was.
just - - I didn’t have a choice.
any income.
I mean, sometimes, no.
I
I mean, you know, I didn’t have
I didn’t have any money.”
(Id.)
Plaintiff testified
that she never declined unemployment benefits due to an inability
to work.
(Id.)
She testified that she received unemployment for
about six months, then had it again, and had not had it for about
- 2 -
one month.
(Id.)
The ALJ noted that plaintiff was using a walker, and
asked plaintiff whether the walker had been prescribed by a doctor.
(Tr.
27).
Plaintiff’s
response
to
that
question,
and
the
subsequent exchange between plaintiff and the ALJ, was as follows:
Answer (by plaintiff): [y]eah, they both told me to go
ahead and use it. A Dr. Icolse [PHONETIC] at St. Louis
U, and I go to Dr. James Compton [PHONETIC], he’s a M.D.
Question (by the ALJ):
was okay to use it?
Well, the doctors just said it
A.
Well, when I asked them what can I do about it.
He said, if you can get a walker, if Medicaid will pay
for it, if you need a cane, I was kind of told, yeah, use
it. So that’s what I’m - Q.
Well, usually Medicaid pays for it after
there’s a prescription. Was there any prescription for
that walker?
A.
it.
Oh, no. He didn’t give me a prescription for
I didn’t know that I could get one.
Q.
And when did you start using the walker?
A.
Oh, gosh.
It’s been about a year now.
Q.
What happened about a year ago that you decided
you needed to use this walker?
A.
I can’t - - I can’t go up and down steps - -
Q.
Well, a walker doesn’t help with that.
- 3 -
A.
I know.
But I tried to you know - - even
though - - I mean, because my - - I just - - I can’t do
about 90 percent of what I used to do. If I don’t have
this, even walking with it, you know, it’s difficult. I
can’t walk far with it. Like I said, I can’t do the
steps. I need it to stabilize my walking. I can’t stand
up straight, and I - - it affects the legs, the feet go
numb. So - (Tr. 27-28).
The
ALJ
then
asked
whether
a
doctor
had
said
that
plaintiff had any type of condition that could be corrected by
surgery, and plaintiff responded: “[t]hey told me that I might want
to consider surgery, yes.
spondylolisthesis.
They said I have spinal stenosis with
That’s,
if
I’m
saying
that
correctly.
Degenerative arthritis, osteoporosis, and scoliosis on the right
side.”
(Id.)
Plaintiff then responded to questions from her attorney.
She testified that she falls forward if she does not use a walker.
(Id.)
She testified that she had pain in her lower back, mainly on
the left side, that radiated into her legs, knees and feet.
(Id.)
She testified that she dropped things, and that she had been told
that this was perhaps due to a condition of her spine.
(Tr. 29).
Plaintiff testified that she had undergone physical therapy and was
taking Meloxicam,2 Relafen,3 Flexeril,4 Calcium and Vitamin D, and
2
Meloxicam (also known as Mobic) is a non-steroidal antiinflammatory medication used to relieve pain, tenderness,
swelling and stiffness caused by osteoarthritis and rheumatoid
arthritis. http://www.nlm.nih.gov/medlineplus/
druginfo/medmaster/a601242.html
3
Relafen, or Nabumetone, is a non-steroidal antiinflammatory medication that is used to relieve pain and other
- 4 -
that her medications caused stomach upset, drowsiness, and frequent
urination.
(Tr. 29-30, 36).
was looking into doing so.
She had not undergone injections but
(Tr. 29).
Plaintiff testified that she lived
alone but had a
daughter who came in and helped her with housework.
testified that she
(Tr. 30).
She
spent her days watching television, going
outside on nice days, and reading.
(Id.)
She stated that she
tried to go to church but did not always make it every Sunday, and
that her daughter went with her to the grocery store.
(Id.)
Plaintiff testified that she had problems sitting because
“[i]t pulls on the back, the feet.
It’s a - - it hurts.”
(Tr. 31).
Now, my feet are numb, my legs.
She testified that she could sit
for only fifteen or twenty minutes.
(Id.)
When asked how long she
could stand before needing to sit down or lay down, plaintiff
testified: “[w]ell, without the walker, I can’t stand - - I can’t.
I have to hold on to something.
But, with the walker, you know, I
don’t know, fifteen minutes or so to stand the entire time.”
(Id.)
When asked how far or how long she could walk with the walker
before needing to stop and rest, plaintiff testified: “[a]bout two
feet maybe, and then I have to stop and reposition myself, you
know, then keep going.”
(Id.)
symptoms caused by osteoarthritis and rheumatoid arthritis.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692022.html
4
Flexeril, or Cyclobenzaprine, is a muscle relaxant used to
relax muscles and relieve pain caused by strains, sprains, and
other muscle injuries. http://www.nlm.nih.gov/medlineplus/
druginfo/medmaster/a682514.html
- 5 -
Plaintiff testified that she had trouble lifting a gallon
of milk because “[w]ell, first of all, I can’t - - I have to hold
the walker, so it’s - - I - - it’s hard for me to grab it and move
it at the same time, and then sometimes when I’m picking up things,
like I said, out of the blue, I’ll drop something.
lifting.”
(Tr. 32).
I don’t do any
Plaintiff also testified that lifting a
gallon of milk hurt her back and legs.
(Id.)
Plaintiff testified
that she had numbness in her feet every day, and swelling in her
lower back, legs, hips, knees and hands.
(Id.)
She testified that
she had shooting pains in her lower back, thighs, buttocks, feet,
and in the back of her legs.
(Tr. 33).
Plaintiff testified that
she used a grabber to pick up things from the floor.
(Id.)
She
testified that she had pain with twisting her body from side to
side, reaching her arms out in front of her and to the sides.
(Id.)
Plaintiff testified that Dr. Compton told her that she
was unable to work.
(Tr. 34).
She testified that Drs. Compton and
Eichholz told her to lift no more than five pounds and to not “do
the stairs if you can’t, which that is a nightmare, doing the
steps.
Basically, they both told me this condition requires a lot
of rest, limited mobility, which I already have, the meds, and
eventually, surgery.”
(Tr. 34).
Plaintiff testified that she had problems getting dressed
in that she could not bend forward and had to sometimes ask her
daughter to come over and help her.
(Tr. 34-35).
Plaintiff
testified that it was difficult for her to put on and take off her
- 6 -
shoes and socks, and that she sometimes used a broomstick to push
her socks off.
(Tr. 35). Plaintiff testified that she had trouble
bathing, in that she did not have handles in her shower and had
difficulty getting herself over the tub, and that it took 15 to 20
minutes to get one foot in.
She testified that she kept a
(Id.)
walker outside the shower, did not stay in long, used a shower
chair, and could no longer lie down in the bathtub as she used to
do.
(Id.)
Plaintiff stated that pain interrupted her sleep, and
that she napped during the day.
(Tr. 36).
She testified that she
liked to read, but could no longer engage in hobbies such as
exercising,
gardening,
and
church
activities.
(Tr.
37-38).
Plaintiff testified that there were days she stayed in bed all day
due to pain.
(Tr. 38).
She testified that she spent three or four
hours per day with her feet propped up.
(Tr. 41).
Plaintiff
testified that she sometimes had trouble picking up her feet when
she walked, and that her left foot would go numb to the point she
could not pick it up or lift it.
(Tr. 39-40).
She stated that she
had some trouble pushing the walker “almost all the time” and had
trouble pushing on her left side.
(Tr. 40).
Plaintiff testified
that she had gained 80 pounds in the last year, and that this may
be attributable to medication.
Plaintiff
then
(Tr. 40-41).
responded
to
questioning
from
ALJ.
Plaintiff testified that she had driven herself to the hearing.
(Tr. 42).
She testified that, when she went to Dr. Eichholz’s
office in November of 2010 and January of 2011 she was using a
- 7 -
walker.
(Id.)
B.
Medical Records
Records
from
the
Morris
Family
Chiropractic
clinic
indicate that plaintiff was seen by chiropractor Gary Morris, D.C.
on December 23, 2008 after being injured when she was knocked to
the ground and bitten by a dog.
(Tr. 163).
Plaintiff denied
experiencing pain or discomfort prior to this incident.
(Id.)
She
complained of sleeping difficulty, irritability, dull intermittent
headache of increasing severity, intermittent upper back pain,
constant sharp severe lower back pain, shooting pain and numbness
in her left leg, and numbness in her left foot and toes and spasm
of her left toes.
(Id.)
decreased
of
range
Examination was positive for, inter alia,
motion,
decreased
flexion
and
extension,
decreased rotation, neck pain, muscular tightness, tenderness in
the cervical spine.
dog bite.
No marks were visible from the
(Tr. 164).
Dr.
sprain/strain,
(Id.)
(Tr. 163-64).
Morris
diagnosed
headache,
and
cervical,
lumbosacral
thoracic,
and
lumbar
radiculitis/neuritis.
Dr. Morris advised plaintiff to use ice packs, and to have
cervical, thoracic and lumbar spine x-rays performed that day.
(Id.)
Plaintiff reported that she had a previous engagement and
would be unable to have the x-rays performed that day, but would do
so the following day.
(Id.)
On December 26, 2008, plaintiff underwent radiological
testing at St. Anthony’s Medical Center.
X-rays of plaintiff’s
cervical spine revealed degenerative changes at C6-C7, and slight
- 8 -
grade I anterolisthesis of C4 on C5.
(Tr. 166).
X-rays of
plaintiff’s thoracic spine revealed slight scoliosis and mild
degenerative changes at C6-C7, and slight grade I anterolisthesis
of C4 on C5.
(Tr. 168).
X-rays of plaintiff’s lumbar spine
revealed grade I anterolisthesis of L4 on L5, degenerative changes
in the lumbar spine and hips, and slight scoliosis.
(Tr. 170).
Plaintiff returned to Dr. Morris on December 30, 2008,
stating that she felt the same since her last visit.
Palpation
revealed
muscular
cervical,
thoracic
and
tightness
lumbar
sine
and
and
(Tr. 172).
tenderness
the
left
in
and
the
right
sacroiliac joints, and muscular tightness and tenderness in the
left and right trapezius. (Id.) Dr. Morris treated plaintiff with
manipulation,
electrotherapy
and
cryotherapy,
plaintiff was progressing as expected.
(Id.)
and
noted
that
She returned on
December 31, 2008 and reported some headache discomfort, and stated
that her neck pain had improved and her upper back pain may have
improved.
(Tr.
173).
Plaintiff
reported
that
her
sleeping
difficulties had improved, but she had pain in her low back, pain
and numbness in her left upper leg, numbness in her left foot and
toes, and spasm of the toes of her left foot.
treated
plaintiff
with
manipulation,
(Id.)
Dr. Morris
electrotherapy
and
cryotherapy, and noted that plaintiff was progressing as expected.
(Id.)
Plaintiff saw Dr. Morris several times per week from
December 30, 2008 through February 26, 2009.
(Tr. 174-204).
On
February 9, 2004, plaintiff classified her improvement as “good.”
(Tr. 194).
She reported being more relaxed, and that bending was
- 9 -
easier.
(Id.)
She characterized her pain as “very mild at the
moment” and reported that she could look after herself although
doing so was painful.
(Tr. 195).
She reported that she could lift
only very light weights, that pain prevented her from walking more
than one mile, that she could sit in her favorite chair for as long
as she liked, stand as long as she wanted, and travel anywhere,
although she experienced extra pain.
(Id.)
She reported that her
social life was normal but increased her pain.
plaintiff’s
last
appointment
with
Dr.
Morris,
(Id.)
he
During
wrote
that
plaintiff had not reached maximum medical improvement, and he
recommended
that
plaintiff
see
an
orthopedic
neurologist for her lower back and leg pain.
specialist
or
(Tr. 174-204).
He
wrote that he had given plaintiff a list of doctors that allow
patients to pay a deposit and make payment arrangements.
(Tr.
204).
Records
from
Southwest
Medical
Center
indicate
that
plaintiff was seen on May 12, 2010 by James S. Compton, M.D. with
complaints of pain in the left sacral area, chronic dull pain with
shooting down the left leg, chronic dull pain in both legs, and
difficulty lifting her legs to ascend stairs, and stated that
neither over-the-counter analgesics nor a heating pad provided
relief.
(Tr. 206).
Plaintiff reported that she had been using a
Lidocaine patch that her sister gave her, and that she had not seen
a doctor in 15 years.
(Id.)
of cigarettes per week.
She reported that she smoked one pack
(Id.)
Upon examination, plaintiff had
pain with flexion and extension of her hip and was able to touch
- 10 -
her toes, but complained of pain.
(Id.)
Dr. Compton’s assessment
was “? lumbar strain,” and he prescribed Meloxicam.
Dr.
Compton
opined
that
plaintiff
needed
an
(Tr. 206).
MRI
but
had
no
insurance, and should get an MRI upon obtaining insurance.
(Id.)
On May 26, 2010, Dr. Compton prescribed Ibuprofen (Motrin).
(Id.)
On June 10, 2010, plaintiff completed an Orthopedic
History report at Washington University Orthopedics, but there is
no
evidence
to
indicate
University orthopedist.
that
she
was
seen
by
a
Washington
In her report, plaintiff reported pain in
her low back, leg, knees and foot, with difficulty walking.
(Tr.
209). Plaintiff reported having been attacked by a dog in December
of 2008.
(Id.)
She stated that climbing stairs, walking, or
standing longer than 10-15 minutes exacerbated her symptoms. (Id.)
She
reported
that
she
was
not
working
due
to
pain.
(Id.)
Plaintiff reported that she was taking Ibuprofen and multivitamins,
and that she had been prescribed Meloxicam but was not taking it
presently.
(Tr. 213).
of cigarettes per day.
She reported that she smoked one-half pack
(Id.)
On June 17, 2010, Suzanne Page completed a physical
residual functional capacity assessment (“PRFCA”).
In
the
PRFCA,
Ms.
Page’s
role
is
identified
(Tr. 47-52).
as
a
“Single
Decisionmaker (SDM)”5 as opposed to “Medical Consultant (MC).”
5
Missouri is one of ten test states participating in a
prototype test of the SDM model, in which “Disability Examiners
with SDM authority complete all disability determination forms
and make initial disability determinations in many cases without
medical or psychological consultant (MC or PC) signoff.”
https://secure.ssa.gov/poms.nsf/lnx/0412015100 (last visited on
- 11 -
(Tr. 52).
Ms. Page opined that plaintiff could lift 20 pounds
occasionally and frequently lift 10, and could stand/walk and sit
for a total of six hours in an eight-hour workday.
(Id.)
Ms. Page
opined that plaintiff was limited in terms of pushing, pulling,
climbing ramps and stairs, kneeling, crouching, crawling, and
stooping. (Id.) Ms. Page opined that plaintiff should never climb
ladders, ropes or scaffolds.
(Id.)
On August 16, 2010, plaintiff was seen by Dr. Compton
with continued complaints of low back pain that was worse when she
walked or climbed stairs, and that had worsened in the past two
years.
(Tr.
Ibuprofen.
238).
(Id.)
Plaintiff
reported
that
she
was
taking
Dr. Compton assessed low back pain and wrote
that plaintiff needed an MRI.
(Id.)
On September 30, 2010, an MRI performed at Open MRI
revealed grade I anterolisthesis of L4 on L5 associated with mild
disc bulging, disc height loss, and moderate facet osteoarthrosis;
mild annular disc bulging at L2-3 and L3-4 with mild bilateral
facet arthropathy; and mild facet osteoarthrosis at L5-S1.
(Tr.
216).
On November 22, 2010, plaintiff saw neurosurgeon Kurt
Eichholz, M.D. at St. Louis University Center for Cerebrovascular
and
Skull
Base
Surgery
(“St.
Louis
University
complaints of back and leg pain since 2008.
August 15, 2013).
- 12 -
Center”)
(Tr. 217).
with
Plaintiff
reported her history of treatment and stated that her symptoms of
pain had significantly worsened, and that she could walk only one
block.
(Id.)
She reported that she had smoked five cigarettes per
day for 30 years, and drank about two beers per month.
(Id.)
Upon
examination, Dr. Eichholz observed that motor examination revealed
full function in all muscle groups, despite plaintiff’s “poor
effort.”
(Tr. 218).
Sensory examination was intact to light
touch, deep tendon reflexes were 2+ and symmetrical, straight leg
raise testing was positive on the left for radicular pain, and
negative on the right.
(Id.)
Plaintiff had moderate but not
significant pain with palpation of her SI joint, and it was noted
that she had a moderate swayback abnormality.
(Id.)
Dr. Eichholz’s assessment was L4-L5 spondylolisthesis
(slippage of one of the bones of the spine out of place onto the
vertebra below it) with lumbar stenosis (narrowing) at L4-L5.
(Id.)
Dr. Eichholz recommended that plaintiff undergo physical
therapy if it would be covered by Medicaid, and return in four to
six weeks.
(Tr. 218).
therapy
not
was
Dr. Eichholz wrote that, if physical
possible,
he
would
discuss
with
plaintiff
a
minimally invasive right L4-L5 transforaminal lumbar interbody
fusion with instrumentation.
(Id.)
He also counseled plaintiff
regarding smoking cessation, stating “that would be the most
significant indicator for her outcome.”
(Id.)
Plaintiff began
physical therapy at St. Louis University Hospital on December 1,
2010.
(Tr. 220-37).
Plaintiff returned to Dr. Eichholz on January 31, 2011
- 13 -
and reported continuing complaints of back pain radiating to her
legs and foot, and reported that her pain was “bad, if not slightly
worse, than it was in November 2010.”
that she had not stopped smoking.
(Tr. 241).
(Id.)
She reported
Motor examination was
full in all muscle groups, and sensory examination was intact.
(Id.)
Straight leg raise testing was positive on the left and
negative on the right.
(Id.)
Dr. Eichholz noted that the September 30, 2010 MRI showed
grade I spondylolisthesis of L4 onto L5 with significant lumbar
stenosis at that level, and that plaintiff otherwise had normal
lumbar lordosis and no significant abnormalities. (Tr. 242).
Dr.
Eichholz noted that a CT scan obtained earlier that day showed no
evidence of spondylolysis.
Dr. Eichholz’s assessment was
(Id.)
L4-L5 spondylolisthesis with lumbar stenosis.
Dr.
Eichholz
wrote
that
he
(Id.)
discussed
plaintiff’s
situation with plaintiff and her daughter, noting that physical
therapy had not helped plaintiff.
he
discussed
surgical
(Id.)
intervention
Dr. Eichholz wrote that
with
plaintiff,
but
that
plaintiff indicated that she lived alone and was worried that there
would be no one to care for her following surgery.
(Tr. 242).
It
is noted that plaintiff indicated that she would discuss the matter
with her family.
(Id.)
Dr. Eichholz wrote that if plaintiff
wished to undergo a minimally invasive right L4-L5 transforaminal
lumbar interbody fusion with instrumentation, she should contact
his office.
(Id.)
On April 21, 2011, Dr. Compton completed a Physical
- 14 -
Residual Functional Capacity Questionnaire.
(Tr. 244-48).
Dr.
Compton reported his diagnosis as degenerative joint disease/lumbar
stenosis with decreased range of motion of the lumbar spine, and
reported plaintiff’s prognosis as “fair.” (Tr. 244). He indicated
that plaintiff’s impairments had lasted/could be expected to last
for 12 months, and he wrote that plaintiff was not a malingerer.
(Id.)
He indicated that emotional factors did not contribute to
the severity of plaintiff’s symptoms and functional limitations.
(Id.)
He indicated that plaintiff’s impairments were reasonably
consistent with her symptoms and functional limitations, and opined
that plaintiff would “frequently” experience pain or other symptoms
severe enough to interfere with the attention and concentration
necessary to perform even simple work tasks.
(Tr. 245).
Dr.
Compton wrote that plaintiff was incapable of even “low stress”
jobs.
(Id.)
He wrote that plaintiff could walk less than one city
block without pain, and opined that plaintiff could sit for 15
minutes to less than one hour, and must then walk.
(Id.)
Dr.
Compton opined that plaintiff could stand for 15 minutes to less
than one hour, and would then need to lie down.
(Id.)
He opined
that plaintiff could sit, stand, and walk for less than two hours
in an eight-hour workday.
(Tr. 245).
Dr. Compton indicated that,
during an eight-hour workday, plaintiff would need to walk every
one minute, for a duration of one minute.
(Tr. 246).
He opined
that plaintiff needed a job that allowed for shifting positions.
(Id.)
He opined that plaintiff would require more than ten
unscheduled breaks during a workday, and would need to rest for 45
- 15 -
minutes before returning to work.
(Id.)
Dr. Compton opined that
plaintiff should sit with her legs elevated above her heart, and
that she must use a cane or other assistive device when walking.
(Id.)
He opined that plaintiff could “rarely” lift less than ten
pounds, and “never” lift 10 pounds or greater.
(Tr. 246).
Dr.
Compton opined that plaintiff could “occasionally” turn her head
right or left, hold her head in a static position, look up, or look
down.
(Tr. 247).
He opined that plaintiff could “rarely” twist,
and should never stoop, crouch/squat, or climb ladders or stairs.
He opined that plaintiff had no limitations regarding fine
(Id.)
fingering.
work.”
(Id.)
Dr. Compton wrote that plaintiff was “unable to
(Id.)
On June 16, 2011, Devyani M. Hunt, M.D. of Washington
University Orthopedics wrote that plaintiff should not lift more
than ten pounds or walk for longer than 15 minutes, and should not
bend or stoop.
(Tr. 250).
There is no indication that Dr. Hunt
examined plaintiff.
C.
Other Evidence
In a Function Report dated
May 12, 2010, plaintiff
indicated that, upon arising, she used the toilet and showered, and
that she stood in the shower because it was difficult to sit in the
tub.
(Tr. 135).
She wrote that she drove five minutes to her
local library twice per week when she was able to walk well to use
the computer/internet services to look for employment and/or to
read.
(Tr. 135, 139).
She ate dinner by 5:30 p.m., watched
television until about 8:00 p.m., and went to bed by 9:30 or 10:00
- 16 -
p.m.
(Id.)
She wrote that she did a very limited amount of
cleaning, that doing laundry was difficult because she had to
travel steps to get to the machines, and that she needed help with
laundry and with taking trash to the curb.
(Tr. 137).
She wrote
that she drove for short distances, and was able to shop in stores
for food and other products for her home.
(Tr. 138).
She wrote
that she could not stand longer than one hour at a time, could only
lift five pounds on a good day, could not walk farther than one
block due to intense pain and her knees giving out, and she could
not kneel or travel stairs without help.
(Tr. 140).
Plaintiff
then wrote that she could not stand longer than 30 minutes.
(Id.)
Plaintiff wrote that she always needed to rest for at least one
hour, maybe two, before resuming walking.
(Id.)
She wrote that
she could pay attention “[a]s long as necessary - 2-3 hours” and
could follow written and spoken instructions “well.”
(Id.)
She
wrote that she got along “very well” with authority figures and
that she was “quite adept at handling stress - mentally - I am
awesome!
It is my physical capabilities that have gotten weak,
causing problems.”
(Tr. 141).
Plaintiff wrote that she handled
changes in routine “well” unless she had to walk or drive far or
stand for long periods.
(Id.)
She wrote that she did not drive or
walk far from home due to pain in her lower back, legs and feet.
(Id.)
She indicated that she used a cane that was not prescribed
by a doctor.
(Id.)
Plaintiff wrote that she “would Love to find
Reasonable, Health Appropriate For Me - Employment that pays well.”
(Tr. 142).
She wrote that she sat for 30 to 45 minutes using a
- 17 -
computer.
(Tr. 144).
III.
The ALJ’s Decision
The ALJ in this case determined that plaintiff had the
severe impairments of slight scoliosis of the thoracic and lumbar
spine and mild degenerative disc disease of the lumbar spine, but
did
not
have
an
impairment
listing-level severity.
or
combination
(Tr. 10-11).
of
impairments
of
The ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform the full range of light work as defined in 20 C.F.R. §
404.1567(b).
The ALJ concluded that plaintiff was able to perform
her past relevant work as a telemarketer and customer service
representative, as this work did not require the performance of
work-related activities precluded by her RFC.
IV.
(Tr. 19).
Discussion
To be eligible for benefits under the Social Security
Act, plaintiff must prove that she is disabled.
Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Services, 955 F.2d 552, 555 (8th Cir. 1992).
The
Social Security Act defines a disabled individual in terms of the
effect of a physical or mental impairment upon the individual’s
ability
to
423(d)(1)(A).
function
in
the
workplace.
See
42
U.S.C.
§
The Act provides for disability benefits only to
those unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve
- 18 -
months.”
Id.
It further specifies that a person must be both
unable to do her previous work and unable, “considering [her] age,
education, and work experience, [to] engage in any other kind of
substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in
which [she] lives, or whether a specific job vacancy exists for
[her], or whether [she] would be hired if [she] applied for work.”
42 U.S.C. § 423(d)(2)(A); see also Bowen v. Yuckert, 482 U.S. 137,
140 (1987); Heckler v. Campbell, 461 U.S. 458, 459-460 (1983).
To
determine
whether
a
claimant
is
disabled,
the
Commissioner follows a five-step evaluation process. See 20 C.F.R.
§ 404.1520; Bowen, 482 U.S. at 140-42.
The Commissioner begins by
considering the claimant’s work activity.
If the claimant is
engaged in substantial gainful activity, disability benefits are
denied.
Next, the Commissioner decides whether the claimant has a
“severe impairment,” meaning one which significantly limits her
ability to do basic work activities.
If the claimant’s impairment
is not severe, then she is not disabled.
If the claimant’s
impairment is severe, the Commissioner then determines whether it
meets or is equal to one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1.
If claimant’s impairment is equivalent to
one of the listed impairments, she is conclusively disabled.
At
the fourth step, the Commissioner establishes whether the claimant
has the residual functional capacity to perform her past relevant
work.
If so, the claimant is not disabled.
If not, the burden
then shifts to the Commissioner to prove that there are other jobs
- 19 -
that exist in substantial numbers in the national economy that the
claimant can perform.
Pearsall, 274 F.3d at 1217, Nevland v.
Apfel, 204 F.3d 853, 857 (8th Cir.
2000).
Absent such proof, the
claimant is declared disabled and becomes entitled to disability
benefits.
The Commissioner’s findings are conclusive upon this
Court if they are supported by substantial evidence.
42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Young
o/b/o Trice v. Shalala, 52 F.3d 200 (8th Cir. 1995), citing Woolf
v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
Substantial
evidence is less than a preponderance but enough that a reasonable
person would find
adequate to support the conclusion.
Callahan, 139 F.3d 606, 608 (8th Cir. 1998).
Briggs v.
To determine whether
the Commissioner’s decision is supported by substantial evidence,
the
Court
must
review
the
entire
administrative
record
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
relating to exertional and non-exertional
activities and impairments;
5.
Any corroboration by third parties of the
plaintiff’s impairments;
6.
The testimony of vocational experts, when
required, which is based upon a proper
hypothetical question which sets forth
the plaintiff’s impairment.
- 20 -
and
Stewart v. Secretary of Health & Human Services, 957 F.2d 581, 58586 (8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).
This court must also review the decision of the
Commissioner to decide whether the proper legal
standard was
Smith v. Sullivan, 982 F.2d 308,
applied in reaching the result.
311 (8th Cir. 1992).
This Court must also consider “evidence which fairly
detracts from the ALJ’s findings.”
Groeper v. Sullivan, 932 F.2d
1234, 1237 (8th Cir. 1991); see also Briggs, 139 F.3d at 608.
However, where substantial evidence supports the Commissioner’s
decision,
the
decision
may
not
be
reversed
merely
substantial evidence may support a different outcome.
because
Jones ex
rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003) (citing
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)); see also
Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal
quotation marks and citation omitted) (“[I]f there is substantial
evidence
on
administrative
the
record
decision,
as
even
a
whole,
if
the
we
record
must
could
affirm
the
also
have
supported an opposite decision.”)
In the case at bar, plaintiff contends that the ALJ’s
decision is not supported by substantial evidence on the record as
a whole.
In support, plaintiff argues that the ALJ’s reference to
“Dr. Ross” was erroneous and alternately that the ALJ improperly
weighed evidence from Dr. Morris; erroneously weighed evidence from
Drs. Compton and Eichholz; and violated 20 C.F.R. § 404.1527(f)(2)
and SSR 96-6p by not acknowledging and discussing the State agency
- 21 -
RFC Assessment. Plaintiff also contends that the ALJ erroneously
failed to inquire how often she could walk, bend, lift, carry, sit
or stand, and failed to assess her work-related abilities on a
function-by-function basis, and provide a narrative discussion of
how the evidence supports each conclusion.
Plaintiff also states
that there is no medical evidence supporting the RFC. In response,
the Commissioner contends that the ALJ’s decision is supported by
substantial evidence on the record as a whole.
A.
Medical and Opinion Evidence
1.
Dr. Ross/Dr. Morris
In the context of discussing the records of Dr. Morris,
the ALJ wrote that he gave “some evidentiary weight” to the opinion
of a doctor he referred to as “Dr. Ross.”
(Tr. 12).
Plaintiff
complains that, because there is no Dr. Ross involved in this case,
the ALJ’s reference to Dr. Ross was erroneous.
correct,
the
typographical
ALJ’s
misstatement
error.
Having
is
read
no
the
more
ALJ’s
While plaintiff is
than
a
harmless
decision
in
its
entirety and considering the ALJ’s single reference to “Dr. Ross”
in the context of the entire opinion, it is quite apparent that the
ALJ was referring to the findings of Dr. Morris.
The ALJ’s
reference to Dr. Ross is nothing more than a harmless typographical
or scrivener’s error that had no practical effect on the outcome of
the case.
It therefore provides no basis to reverse and/or remand
the ALJ’s decision.
See Hepp v. Astrue, 511 F.3d 798, 806 (8th
Cir. 2008) (“an arguable deficiency in opinion-writing technique
does not require us to set aside an administrative finding when
- 22 -
that
deficiency
had
no
bearing
on
the
outcome”);
Quaite
v.
Barnhart, 312 F. Supp. 2d 1195, 1199-1200 (E.D. Mo. 2004) (whether
misstatement is typographical error is to be determined by reading
misstatement in context of entire opinion).
Plaintiff next contends that, even if the ALJ could be
understood to refer to Dr. Morris, it was error for the ALJ to give
Dr. Morris’s findings weight because Dr. Morris is a chiropractor
and therefore not an “acceptable medical source” as defined in the
Regulations.
Indeed, the Commissioner’s Regulations provide that
evidence to establish an impairment must come from “acceptable
medical
sources,”
osteopathic
which
physicians,
are
defined
licensed
or
as
licensed
certified
medical
or
psychologists,
licensed optometrists, licensed podiatrists, and qualified speechlanguage pathologists.
20 C.F.R. § 404.1513(a)(1)-(5).
However,
as the Commissioner correctly notes and as plaintiff fails to
recognize,
chiropractors
like
Dr.
Morris
are
defined
in
the
Regulations as “other sources” whose opinions may be used to show
the severity of an impairment and how it affects the claimant’s
ability to work.
20 C.F.R. § 404.1513(d)(1).
There is no evidence
that the ALJ placed any greater weight than this on Dr. Morris’s
findings. The ALJ’s treatment of Dr. Morris’s findings is entirely
consistent with the Regulations.
2.
Dr. Compton6
6
For the sake of argument, the undersigned will presume that
Dr. Compton is properly characterized as a treating physician,
even though the record indicates that plaintiff saw him only
twice.
- 23 -
In
decision,
discussion
exhaustive
his
of
the
Dr.
ALJ
included
Compton’s
residual functional capacity assessment.
a
lengthy
and
treatment
records
and
After giving multiple
reasons, the ALJ wrote that he rejected Dr. Compton’s residual
functional capacity assessment.
(Tr. 12-15).
Plaintiff argues
that the ALJ was not justified in doing so, and that Dr. Compton’s
opinion is evidence that supports her allegations.
Review of the
ALJ’s decision reveals no error.
A treating physician’s opinion is generally entitled to
substantial weight, but it does not automatically control, because
the ALJ must evaluate the record as a whole.
Davidson v. Astrue,
501 F.3d 987, 990 (8th Cir. 2007) (citing Charles v. Barnhart, 375
F.3d 777, 783 (8th Cir. 2004)). When an ALJ discounts a treating
physician’s opinion, he should give “good reasons” for doing so.
Davidson, 501 F.3d at 990 (citing Dolph v. Barnhart, 308 F.3d 876,
878 (8th Cir. 2002)).
If justified by substantial evidence in the
record as a whole, the ALJ can discount the opinion of an examining
physician or a treating physician.
See Rogers v. Chater, 118 F.3d
600, 602 (8th Cir. 1997); Ward v. Heckler, 786 F.2d 844, 846 (8th
Cir. 1986).
The ALJ gave several valid reasons for rejecting Dr.
Compton’s RFC assessment.
The ALJ noted that it was unsupported by
medically acceptable clinical and laboratory diagnostic techniques.
This finding is supported by the record.
As the ALJ observed,
while Dr. Compton opined that plaintiff had serious functional
limitations, his treatment records are nearly devoid of mention of
- 24 -
medically acceptable clinical and diagnostic techniques that would
support the extreme degree of limitations expressed in the RFC
assessment. For example, while Dr. Compton opined that plaintiff’s
pain was so severe that it interfered with her attention and
concentration, his treatment notes did not indicate that he ever
tested plaintiff’s concentration or attention.
Also, while Dr.
Compton opined that plaintiff was severely limited in her ability
to perform various work-related activities, he did not offer, nor
does examination of his treatment records indicate, what medical
findings support such
extreme limitations.
According to the
Regulations and to Eighth Circuit precedent, a treating physician’s
opinion must be well-supported by medically acceptable clinical and
laboratory diagnostic techniques to be entitled to controlling or
substantial weight.
20 C.F.R. § 404.1527(d)(3); Reed v. Barnhart,
399 F.3d 917, 920 (8th Cir. 2005).
The ALJ also noted that, instead of documenting objective
medical evidence to explain his findings regarding plaintiff’s
condition,
Dr.
complaints.
Compton
merely
repeated
plaintiff’s
subjective
An ALJ may discount an opinion that is based largely
on a claimant’s subjective complaints rather than objective medical
evidence.
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007); see
also Vandenboom v. Barnhart, 421 F.3d 745, 749 (8th Cir. 2005) (an
ALJ was justified in giving less weight to a treating physician’s
opinion where the physician failed to document objective medical
evidence to support subjective complaints).
The ALJ also noted that Dr. Compton’s RFC assessment was
- 25 -
inconsistent
with
his
own
treatment
notes,
which
contain
no
reference to a need for plaintiff to elevate her leg above her
heart when sitting, or to limit her activity in the extreme manner
described in the RFC assessment.
When a treating physician’s
treatment notes are not consistent with his residual functional
capacity
assessment,
the
Commissioner
will
decline
to
give
controlling weight to the residual functional capacity assessment.
See Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006); Davidson
v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (“It is permissible
for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician’s own clinical treatment notes”).
The ALJ noted that Dr. Compton’s RFC assessment was
inconsistent with other medical evidence in the record, including
Dr.
Eichholz’s
plaintiff
records.
complained
of
Indeed,
as
the
debilitating
ALJ
observed,
symptoms
and
while
extreme
functional limitations, Dr. Eichholz’s records and the reports of
objective medical testing consistently characterized plaintiff’s
condition as mild in nature.
See Owen v. Astrue, 551 F.3d 792, 799
(8th Cir. 2008) (objective evidence of mild impairment supported
ALJ’s decision to give less than controlling weight to the treating
physician’s opinion). An ALJ may decline controlling weight to the
opinion of a treating physician that is inconsistent with the other
medical evidence of record.
Travis v. Astrue, 477 F.3d 1037, 1041
(8th Cir. 2007) (“If the doctor’s opinion is inconsistent with or
contrary to the medical evidence as a whole, the ALJ can accord it
less weight”).
- 26 -
The ALJ also appropriately characterized Dr. Compton’s
opinions as merely conclusory.
Piepgras v. Chater, 76 F.3d 233,
236 (8th Cir. 1996) (It is appropriate to disregard statements of
opinion by a treating physician that “consist[s] of nothing more
than vague, conclusory statements”). Also notable is the fact that
Dr. Compton expressed his opinion by checking boxes and circling
numbers. A treating physician’s check marks on a questionnaire are
conclusory opinions that may be discounted if, as in this case,
they are contradicted by other objective medical evidence in the
record, especially when that other evidence is that doctor’s own
records.
See Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th Cir.
2004); see also Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005) (a physician’s check marks on a medical source statement form
merely address the claimant’s residual functional capacity to work,
which is a determination the Commissioner must make).
The ALJ observed that, while Dr. Compton indicated in his
RFC assessment that he saw plaintiff three times in 18 months, the
administrative record reveals that he saw plaintiff only twice.
The ALJ also noted that Dr. Compton did not perform an examination
of plaintiff before preparing the RFC questionnaire. When deciding
“how much weight to give a treating physician’s opinion, an ALJ
must also consider the length of the treatment relationship and the
frequency of examinations.”
(8th Cir. 2007).
Casey v. Astrue, 503 F.3d 687, 692
The ALJ also noted that, while Dr. Compton
observed that physical therapy did not help plaintiff, he failed to
note that plaintiff attended only three sessions.
- 27 -
While not
dispositive, this is further evidence undermining Dr. Compton’s
opinion.
Noting that Dr. Compton made findings based partially on
plaintiff’s alleged emotional impairments, including that she was
incapable of performing even a low stress job, the ALJ wrote that
Dr. Compton was not a mental health professional, and such opinions
were therefore outside his area of practice.
See 20 C.F.R. §
404.1527(d)(5) (a source’s opinion on issues outside his or her
area
of
specialty
are
not
entitled
to
greater
weight).
In
addition, plaintiff’s own statements are inconsistent with Dr.
Compton’s opinion in this regard.
In a May 12, 2010 Function
Report, plaintiff wrote that she was “quite adept at handling
stress - mentally - I am awesome!”
(Tr. 141).
Finally, Dr. Compton opined that plaintiff was unable to
work.
This is not the sort of opinion that the ALJ is required to
credit.
Ellis,
392
F.3d
at
994–95
(physician’s
opinion
that
claimant is unable to work involves an issue reserved for the
Commissioner and is not the type of opinion which the Commissioner
must credit).
The ALJ fully considered Dr. Compton’s opinion in light
of the record as a whole, and provided multiple valid reasons for
rejecting it. Substantial evidence supports the ALJ’s treatment of
Dr. Compton’s RFC assessment.
3.
Dr. Eichholz
In his decision, the ALJ wrote that he gave substantial
weight to Dr. Eichholz’s findings.
- 28 -
Plaintiff alleges error,
arguing that the ALJ did not explain the reasons given for the
weight assigned to Dr. Eichholz’s opinion.
reveals no error.
Review of the record
The ALJ’s decision includes a comprehensive
discussion of Dr. Eichholz’s treatment records and findings.
the
ALJ
observed,
Dr.
Eichholz’s
findings
were
based
As
upon
medically acceptable clinical and laboratory diagnostic techniques,
including an MRI showing mild findings, a CT scan showing no
evidence of spondylolysis, and examination findings indicating full
motor strength in all muscle groups, intact response to sensation,
and positive straight leg raise testing at 90 degrees but no
significant
pain
in
trochanteric regions.
an
associate
the
joint
or
left
greater
The ALJ also noted Dr. Eichholz’s status as
professor
University Hospital.
sacroiliac
of
neurological
surgery
at
St.
Louis
As the Commissioner correctly notes, Dr.
Eichholz is properly recognized as a specialist in neurological and
spinal issues.
The opinions of specialists on issues within their
areas of expertise are generally entitled to more weight than the
opinions of non-specialists. 20 C.F.R. § 404.1527(d)(5); Guilliams
v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005).
The ALJ also observed that plaintiff did not pursue the
surgical intervention Dr. Eichholz offered, and that this detracted
from the credibility of her subjective allegations.
alleges
error,
arguing
that
Dr.
Eichholz’s
surgery supports her subjective allegations.
Plaintiff
recommendation
of
Plaintiff also notes
that she had no one to care for her following surgery, an apparent
attempt to explain her reason for refusing surgery.
- 29 -
Review of the
ALJ’s decision reveals no error.
While Dr. Eichholz’s recommendation of surgery is not
inconsistent with allegations of pain, it does not alone support
plaintiff’s allegations that she is completely and totally disabled
from all work.
The ALJ in this case did not determine that
plaintiff had no pain or limitations.
He limited plaintiff to
light work, which represents significant functional limitations.
See Choate v. Barnhart, 457 F.3d 865, 870 (8th Cir. 2006) (citing
Ellis, 392 F.3d at 994 (the limitation to light work represents
significant functional limitations).
Plaintiff argues that the ALJ erroneously observed that
plaintiff’s condition did not require surgery when in fact Dr.
Eichholz recommended surgery.
However, the ALJ did not state that
surgery was never recommended.
Quite to the contrary, the ALJ
fully discussed Dr. Eichholz’s treatment records and noted that he
offered plaintiff surgery but that plaintiff evidently chose to not
pursue it.
Eighth Circuit precedent permits an ALJ to make an
adverse inference from a claimant’s failure to avail herself of
recommended treatment.
Guilliams, 393 F.3d at 802.
Plaintiff’s
suggestion that she did not pursue surgery because she had no one
to
care
for
her
afterwards
is
not
compelling.
During
the
administrative hearing, plaintiff testified that she had serious
functional limitations, and that her daughter came to her house to
help her.
Plaintiff testified that her daughter came to her house
to help her with housework (Tr. 30), and that her daughter also
went to the grocery store
with her.
- 30 -
(Id.)
Plaintiff also
testified that she had trouble bending forward, and sometimes
called her daughter to come over and help her get dressed.
(Tr.
34-35). Plaintiff also testified that her daughter visited her and
brought her baby and her laptop computer.
(Tr. 30, 37).
In
addition, Dr. Eichholz’s records indicate that plaintiff’s daughter
accompanied
plaintiff
to
the
appointment.
Plaintiff
already
receives what is apparently a lot of assistance from her daughter.
This belies the conclusion that the unavailability of help was the
reason plaintiff did not pursue surgery.
It appears more likely
that plaintiff did not pursue surgery because she did not feel a
need for it.
Substantial evidence supports the ALJ’s treatment of
Dr. Eichholz’s findings.
4.
State Agency PRFCA
Plaintiff also contends that the ALJ’s decision should be
reversed because he violated 20 C.F.R. § 404.1527(f)(2) and SSR 966p by stating that there was no State agency medical evaluation
when in fact there was.
In her brief, plaintiff argues that
“findings regarding the nature and severity of an impairment made
by State agency
consultants and other program physicians and
psychologists ‘must be treated as expert opinion evidence of
nonexamining sources,’ and ALJs “‘may not ignore these opinions and
must
explain
the
weight
given
to
decisions.’” (Docket No. 15 at 11).
these
opinions
in
their
In the Brief In Support Of The
Answer, the Commissioner offers no response to this allegation of
error.
See (Docket No. 18).
Plaintiff’s argument is unavailing.
The ALJ was correct that there was no State agency
- 31 -
medical evaluation.
Ms. Page, the signatory who completed the
PRFCA, is identified not as a Medical Consultant but as a “Single
Decisionmaker
nonmedical,
plaintiff
(SDM)”
or
lay,
cites,
20
(Tr.
52).
State
A
agency
C.F.R.
§
Single
Decisionmaker
evaluator.
404.1527(f)(2)
The
and
is
a
authority
SSR
96-6p,
addresses the manner in which an ALJ is required to treat agency
medical sources, and therefore provides no basis for reversal.
Plaintiff does not offer, nor does independent research reveal, any
authority to support the conclusion that the ALJ erred by not
specifically addressing the opinion of the Single Decisionmaker.
The ALJ’s decision in this case was very
thorough.
Nothing about the decision raises suspicion that the ALJ carelessly
or willfully ignored any evidence.
An ALJ is not required to
discuss in detail every piece of evidence submitted, and a failure
to cite to certain evidence does not mean it was not considered.
Brewster v. Barnhart, 366
F.Supp. 2d 858, 872 (E.D. Mo., 2005),
citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998).
Review of the ALJ’s decision shows that he properly
considered all of the evidence in the record as a whole in deciding
how to weigh the medical evidence of record, and provided multiple
valid reasons for the weight assigned.
B.
RFC Determination
Plaintiff next challenges the ALJ’s RFC determination,
arguing that it was unsupported by medical evidence, that Dr.
Compton’s
opinion
is
the
only
medical
evidence
establishing
plaintiff’s RFC, that the ALJ did not include findings with respect
- 32 -
to her ability to sit, stand, walk, lift, carry, push and pull, and
did not assess her work-related abilities on a function by function
basis.
Review of the ALJ’s decision reveals no error.
Residual functional capacity is defined as that which a
person remains able to do despite her limitations.
20 C.F.R. §
404.1545, Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001).
The
ALJ must assess a claimant’s RFC based upon all relevant, credible
evidence in the record, including medical records, the observations
of
treating
physicians
and
others,
and
the
claimant’s
own
description of her symptoms and limitations. 20 C.F.R. § 404.1545;
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995); Goff, 421
F.3d at 793.
A claimant’s RFC is a medical question, and there must be
some medical evidence, along with other relevant, credible evidence
in the record, to support the ALJ’s RFC determination.
Id.;
Hutsell v. Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer,
245 F.3d at 703-04; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000).
An ALJ’s RFC assessment which is not properly informed and
supported by some medical evidence in the record cannot stand.
Hutsell, 259 F.3d at 712.
However, although an ALJ must determine
the claimant’s RFC based upon all relevant evidence, the ALJ is not
required
to
produce
evidence
and
affirmatively
prove
that
a
claimant can lift a certain weight or walk a certain distance.
Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at
863.
The claimant bears the burden of establishing her RFC.
421 F.3d at 790.
- 33 -
Goff,
As the Commissioner argues, a claimant’s statements alone
will not establish disability.
There must be medical signs and
laboratory findings showing an impairment which could reasonably be
expected to produce the symptoms alleged and which, when considered
with all of the other evidence, would lead to the conclusion that
the claimant is disabled.
20 C.F.R. § 404.1529.
In this case,
there are no such signs or findings that support plaintiff’s
allegations.
Instead, the medical evidence of record supports the
ALJ’s RFC determination. For example, Dr. Eichholz’s 2010 and 2011
examinations revealed full motor function in all muscle groups, and
intact response to sensation.
The findings from MRI and CT testing
were generally described and interpreted as mild.
medical
findings
did
not
include
significant
Objective
deficits
in
plaintiff’s abilities to squat, stand, walk, sit, lift, carry,
bend, or stoop, lasting for 12 months.
evidence
of
long-term,
significant
There is no objective
spasm,
nor
is
there
such
evidence of the atrophy which may be expected if plaintiff was as
inactive as she asserts. While plaintiff argues that Dr. Compton’s
RFC assessment should be used to establish her RFC, the ALJ
properly considered and rejected that assessment, and was therefore
under no obligation to include such limitations in his RFC.
The
ALJ’s RFC determination is also supported by his legally sufficient
conclusion that plaintiff’s subjective allegations were not fully
credible, a finding that plaintiff does not specifically challenge.
While plaintiff is correct that an ALJ’s RFC determination must be
supported by some medical evidence, “the burden of persuasion to
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prove disability and demonstrate RFC remains on the claimant.”
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
Plaintiff
herein cannot demonstrate that her functional limitations are
greater than those described in the ALJ’s RFC assessment.
An RFC
assessment draws from medical sources for support, but RFC is
ultimately an administrative decision reserved to the Commissioner.
Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citations
omitted).
Plaintiff also contends that the ALJ failed to assess her
work-related limitations on a function by function basis, and did
not specifically inquire into how long she could walk, bend, lift,
carry,
sit
or
stand.
Indeed,
an
ALJ
should
“identify
the
individual’s functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis,”
including
functions
such
as
sitting,
standing,
and
walking.
Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (quoting
S.S.R. 96-8p, 1996 WL 374184, at *1).
In Depover, the Eighth
Circuit noted that an ALJ’s failure to make a function by function
assessment “could result in the adjudicator overlooking some of an
individual’s limitations or restrictions.”
Id.
The Depover Court
noted that, in Pfitzner v. Apfel, 169 F.3d 566, 568-69 (8th Cir.
1999), the ALJ’s decision was reversed on this basis because the
ALJ had failed to “specify the details” of the claimant’s RFC, and
instead described it “only in general terms,” leaving it unclear
whether substantial evidence supported the ALJ’s decision that the
claimant could return to his past relevant work.
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Id.
In the case at bar, however, (as in Depover) the ALJ did
not merely describe plaintiff’s RFC in “general terms.”
See Id.
Instead, as noted above, the ALJ conducted a detailed analysis of
the evidence of record and of plaintiff’s testimony, and formulated
a
specific
RFC
that
took
into
account
all
of
plaintiff’s
limitations that the ALJ found credible and supported by the
record.
While the ALJ did not present his findings in a bullet-
point format, such a rigid format is not required, as plaintiff
seems to suggest.
An ALJ is not required to affirmatively prove
that a claimant can lift a certain weight or walk a certain
distance.
Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney,
228 F.3d at 863.
Review of the ALJ’s RFC determination reveals that he
properly exercised his discretion and acted within his statutory
authority in evaluating the evidence of record as a whole.
Having
reviewed the ALJ’s decision with the requisite deference, the
undersigned concludes that it is supported by substantial evidence
on the record as a whole.
Therefore, for all of the foregoing reasons, on the
claims that plaintiff raises,
IT IS HEREBY ORDERED that the Commissioner’s decision is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 16th day of August, 2013.
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