Farmer v. Astrue

Filing 28

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and that this case is DISMISSED. An appropriate Order shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 03/25/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTONY M. FARMER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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Case number 4:11cv1947 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.
Colvin, the Acting Commissioner of Social Security (Commissioner), denying the applications
of Antony Farmer (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income (SSI) under
Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned for a final disposition
pursuant to the written consent of the parties. See 28 U.S.C. § 636(c). Plaintiff has filed a
brief in support of his complaint; the Commissioner has filed a brief in support of her answer.
Procedural History
Plaintiff applied for DIB and SSI in March 2005, alleging he was disabled as of August
2, 2003, by a cervical disc pinching his spine and by numb hands. His applications were
denied initially and after a December 2006 administrative hearing. (R.2 at 46-59, 623-40.)
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013, and is hereby substituted for Michael J. Astrue as defendant. See 42 U.S.C. § 405(g).
2

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

answer.

The Appeals Council remanded with directions that the ALJ obtain additional evidence about
Plaintiff's impairments and evidence from a vocational expert about the affect of Plaintiff's
nonexertional limitations on his occupational base. (Id. at 62-64.) Following a September
2007 hearing, the applications were again denied by same ALJ. (Id. at 65-78, 605-22.) The
Appeals Council remanded for consideration by a different ALJ. (Id. at 79-83.) Following that
ALJ's adverse decision, the Appeals Council denied Plaintiff's request for review, effectively
adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 6-9.)
Testimony Before the ALJ
Plaintiff, represented by counsel, was the only witness to testify at the first and second
hearings.
Plaintiff testified that the majority of his pain originated in his left arm. (Id. at 626.)
His left leg was weak, requiring that he use a cane and, sometimes, a brace. (Id.) He wears
a back brace when standing or sitting. (Id. at 627.) His left knee is very weak. (Id. at 628.)
He takes Metformin for his diabetes, Naproxen for pain, Amitriptyline for depression, and
Neurontin for nerves. (Id. at 629.) He saw a doctor at Barnes Jewish Hospital for depression
in 2005, and had an appointment for a psychological evaluation within the next month. (Id.
at 630.) Dr. Wells had recommended it. (Id.) He was being evaluated by a pain management
center. (Id. at 632.) And, it was recommended that he go through more physical therapy and
have steroid injections in his neck. (Id.)
He paces himself when doing household chores. (Id. at 633.) He cannot "carry hot
stuff" or use knives because of he numbness and weakness in his hands. (Id.) He does not

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carry anything in his left hand. (Id.) Eighty-five percent of the time, he uses a cane. (Id. at
634.) He last worked in food service in 2003 or 2004. (Id. at 635.) The year before, he had
tried working a part-time job at a school cafeteria, but could not do all that was expected. (Id.)
Rating his pain on a ten-point scale, with ten being the most severe, Plaintiff described
his neck pain as an eight to nine without medication and a five to six with medication. (Id. at
637.) His low back pain was a seven or eight. (Id. at 637.)
Plaintiff testified at the second hearing that his continuing neck pain was starting to
affect his right hand, having already affected his left hand. (Id. at 608.) He has a limited range
of motion in his neck. (Id. at 609.) He was continuing to take pain medication and Metformin
for his diabetes. (Id. at 611-12.)
Plaintiff explained that the primary reason he could not perform any work was the
danger of losing a limb or falling and becoming unconscious in the workplace. (Id. at 614-15.)
Being around sharp objects and hot things posed a danger to him. (Id. at 615.)
Plaintiff does not drive. (Id. at 617.)
At the third, December 2008, hearing, Plaintiff and Delores E. Gonzalez, M.Ed.,
testified.
Plaintiff testified that he was then 43 years old, 5 feet 8 inches tall, is right-handed, and
weighs approximately 205 pounds. (Id. at 545.) He is married and lives with his wife and two
of his five children. (Id. at 546.) He receives food stamps and is on Medicaid. (Id. at 547.)

-3-

Plaintiff last worked in 2003. (Id. at 549.) He was then a broiler chef at a restaurant.
(Id.) When asked about earnings in 2006, he testified that he had worked part-time as a line
server in a school cafeteria for a few months and had been laid off after being offered a fulltime job that he could not perform due to the lifting requirements. (Id. at 550-51.) He had also
worked at a restaurant for approximately three weeks as a dishwasher and busboy. (Id. at
551.) He had applied for work at another, small restaurant, but had not been hired. (Id. at
552.) Plaintiff has worked as a lead prep chef, saute chef, production chef, server, breakfast
chef, and sandwich and pizza chef. (Id. at 556-59.)
Asked if he would work again at a restaurant if he could, Plaintiff replied he would as
long as he did not have to carry heavy items. (Id. at 553.)
Plaintiff testified that he wakes up at 6 a.m., wakes his children, gets them ready for
school, rides with them on a bus to school,3 and stays at school and works as a volunteer. (Id.
at 560-63.) He is able to sit down when doing volunteer work at school. (Id. at 562.) On the
days he is not at school, he sleeps and relaxes. (Id. at 563-64.) He sometimes cooks at home,
but does not "do too much hot stuff." (Id. at 564.) His wife does the laundry. (Id.) He puts
away dishes and helps his wife change the bed linens. (Id.) He does not mop or vacuum, but
sometimes sweeps. (Id. at 564-65.) He goes grocery shopping with his wife, and can carry a
bag of groceries. (Id. at 565.) He watches "[l]ots of TV" and reads (Id. at 565-66.) At least
once a week, he goes to the library to check out books, usually about sports or history. (Id. at

3

Plaintiff later explained that he and his two children take a bus to school because the children
are still enrolled in the St. Louis City schools while the family temporarily resides in St. Louis County.
(Id. at 584.)
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566.) In the evening, he helps his children with their homework. (Id. at 567-68.) On the
weekends, he goes on outings with his children, his sister, and his sister's two children. (Id.
at 568.) His sister comes to get them. (Id.)
Plaintiff takes Percocet for pain in his left arm, left hand, low back, left leg, and,
recently, right knee. (Id. at 571.) On a ten-point scale, his pain is an eight to nine before
Percocet and a two or three after. (Id. at 572.) At bedtime, he takes Amitriptyline and
Gaviscon, a nerve medicine. (Id. at 573-74.) He also takes Neurontin, a muscle relaxer, and
Naproxen, a pain reliever. (Id. at 574.) Unlike the Percocet, he takes Naproxen every day.
(Id.) In the past week, he has taken two Percocet every day. (Id. at 575.) He takes Metformin
for his diabetes, which is under control, and medications for his sinuses and allergies. (Id. at
575-76.)
Plaintiff continues to have pain in his neck. (Id. at 586.)
Plaintiff wears braces on both legs and on his back. (Id. at 578.) The brace for the left
leg and the back were prescribed. (Id.) He usually uses a cane, but had forgotten it that
morning until he was at the bus stop and had not wanted to walk back and get it because his
children would be late for school. (Id. at 584, 585.)
Plaintiff testified that he gets depressed because he is no longer able to provide for his
family. (Id. at 579.) His concentration level is at 75 percent. (Id. at 580.) The last time he
spoke with a psychiatrist was for his Social Security examination. (Id.) The last time he had
physical therapy was two and one-half years ago. (Id. at 589.)

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He cannot walk farther than a block without stopping. (Id. at 581.) He has great
difficulty stooping, crouching, bending, kneeling, or crawling. (Id.)
Plaintiff explained that the reference in the emergency room records to him not taking
his medicine was that he could not afford them after his Medicaid was stopped. (Id. at 59293.) And, he was not exaggerating his weakness as Dr. Tippett reported. (Id. at 593.) Nor
was he malingering as Dr. Mades reported. (Id. at 594-95.)
Ms. Gonzalez testified as a vocational expert (VE). She classified Plaintiff's past work
as a broiler chef as medium, skilled work; as a busboy as medium, unskilled; as a waiter,
bartender, cook, and cafeteria worker each as light, semiskilled; as a prep cook as medium,
unskilled; as a pizza maker as medium, semiskilled; and as a stocker as heavy, semiskilled.
(Id. at 597.)
The ALJ asked her to assume a hypothetical person age forty-three with a high school
education and past relevant work as she had described. (Id. at 597-98.) This person was
capable of performing light work, i.e., he could occasionally lift, carry, push, and pull twenty
pounds and frequently do so with ten pounds; could sit, stand, or walk for a total of six hours
out of eight; could occasionally reach with the left upper extremity; could only occasionally
do fine manipulations with the left hand; could occasionally climb, balance, stoop, crouch,
kneel, or crawl; and should not be allowed on ladders, ropes, or scaffolds. (Id. at 598.) Asked
if such a person could perform any of Plaintiff's past relevant work, the VE replied that he
could not due to the bimanual dexterity required for each. (Id.) Nor were there any
transferrable work skills. (Id.)

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This person could, however, perform the requirements of such representative jobs as
a call-out operator and election clerk. (Id. at 599.) These jobs existed in significant numbers
in the national, state, and local economies. (Id.)
If the hypothetical person was capable of performing the exertional requirements of
sedentary work, occasionally lifting, carrying, pushing, or pulling ten pounds and frequently
doing so with less than ten pounds; sitting for six hours out of eight and standing or walking
for a total of two hours; only occasionally climbing, stooping, crouching, kneeling, or
crawling; and only occasionally using his left upper extremity for reaching or fine
manipulation, there would be no transferrable work skills. (Id.) The person also could not
perform Plaintiff's past relevant work, but could perform the jobs earlier described. (Id. at
600.)
The VE stated that her testimony was consistent with the Dictionary of Occupational
Titles (DOT). (Id.)
In response to questions asked by Plaintiff's counsel, the VE testified that the jobs
earlier described could be performed by a person limited to simple repetitive work activities.
(Id.) Nor would these jobs be affected if the person needed to use a cane when walking, was
limited to forty minutes at a time when sitting and to fifty-one minutes when standing, and
could not kneel, crouch, crawl, use any foot controls, or be on scaffolds or around unprotected
heights or moving mechanical parts. (Id. at 600-01.) If the person could not drive or use
public transportation, his dependency on others for rides to work might compromise the jobs.
(Id. at 601.) If the person could not work with paper files, the election clerk and call-out

-7-

operator position would be affected, but not such positions as surveillance system monitor.
(Id. at 602.) If the person was also unable to stay on task due to problems with concentration,
attentiveness, or memory, the number of jobs he could perform would be significantly eroded.
(Id.)
The job of surveillance system monitor, including gaming surveillance, existed in
significant numbers in the national, state, and local economies. (Id. at 602-03.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms completed as part of the
application process, documents generated pursuant to Plaintiff's applications, records from
health care providers, and various assessments and reports generated pursuant to Plaintiff's
applications.
When applying for DIB and SSI, Plaintiff completed a Disability Report. (Id. at 15763.) He listed his height as 5 feet 8 inches tall and his weight as 210 pounds. (Id. at 157.) His
impairments – the pinching cervical disc and numbing hands – limit his ability to work by
preventing him for lifting anything or holding anything in his left hand and by making it hard
for him to bend over and stoop. (Id. at 158.) The impairments first bothered him on January
24, 2003, and made him unable to work that same day. (Id.) He tried to continue to work,
however, but stopped working on November 1, 2003, due to his disability. (Id.) He had one
year of college and had completed a culinary program. (Id. at 162.) He was scheduled to soon
have surgery. (Id. at 163.)

-8-

Asked to describe on a Function Report what he does during the day, Plaintiff reported
in December 2004 that he checks his glucose levels, eats breakfast, takes his medicine, wakes
up his daughter, does his physical therapy exercises, talks to his wife, sits and relaxes with his
feet up, watches television, wakes his younger son, waits with his son for the school bus, gets
the food together for after-school snacks and dinner, eats dinner (prepared by an older son),
takes medication, gets ready for bed, waits for his wife to return safely from work, and goes
to bed. (Id. at 149, 156.) Because of his impairments, Plaintiff has difficulties tying his shoes
and using buttons and zippers. (Id. at 150.) His wife helps him wash his back and head; his
wife and son help him shave. (Id.) He cannot lift anything heavy and cannot bend over. (Id.)
He does not do any household repairs or yard work. (Id. at 151.) He mops and sweeps, but
both take him time. (Id.) Approximately once a month, he shops. (Id. at 152.) He has to put
his cane in his cart and it takes him at least two hours to shop at two or three stores. (Id.) His
impairments adversely affect his abilities to lift, squat, bend, stand, reach, walk, kneel, climb
stairs, complete tasks, and use his hands. (Id. at 154.) He can only walk for approximately a
block before having to stop, bend his left knee, and, probably, sit. (Id.) He has no difficulty
paying attention. (Id.) He can follow written and spoken instructions well. (Id.) He gets
along well with authority figures, but he does not handle stress or changes in routine well.
(Id.)

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Plaintiff had reportable earnings in the years from 1983 through 2003, inclusive, and
2006. (Id. at 127.) In 2002, his annual earnings were $6746,4 in 2003 were $3,266, and in
2006 were $1,030. (Id.)
The medical records before the ALJ are summarized below in chronological order,
beginning with those after January 31, 2004, when Plaintiff's closed period disability ended.5
In February 2004, Plaintiff went to the Pain Management Center at Barnes Jewish
Hospital (Barnes). (Id. at 297-308.) It was a new visit. (Id.) He reported an aching, burning,
and constant low back pain that was a seven on a ten-point scale, and attributed the origin of
the pain to a myelogram he had had before fusion surgery on his neck. (Id. at 301, 306.) His
neck pain had been relieved by the surgery, but he continued to have numbness and tingling
in his both hands and pain in his left hand. (Id.) Precipitating factors were bending, sitting,
standing, and walking; alleviating factors were massage, rest, medication, and heating pads.
(Id. at 299, 300, 306.) He was on a 2200 calorie diet recommended by the American Diabetes
Association and had lost 68 pounds. (Id.) He had stopped working in November 2003 and
was applying for disability. (Id. at 301.) Naproxen helped and had no side effects. (Id. at 303,
307.) On examination, straight leg raises6 were positive on the left when sitting and negative
when lying down. (Id. at 304.) He had a symmetric gait, but normal muscle strength. (Id. at

4

All amounts are rounded to the nearest dollar.

5

See page 32, infra.

6

"During a [straight leg raising] test a patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patient's reports of back pain
by raising the patient's legs when the knees are fully extended." Willcox v. Liberty Life Assur. Co.
of Boston, 552 F.3d 693, 697 (8th Cir. 2009) (internal quotations omitted).
- 10 -

304, 307.) He had a good range of motion in his cervical spine. (Id.) The range of motion in
his lumbar spine was limited by pain. (Id.) X-rays of his lumbar spine revealed a normal
alignment with Grade I-II anterolisthesis of L5-S1; bilateral pars interarticularis defects at L5
with resultant L5-S1 facet arthropathy; and mild degenerative disc disease at T12-L1. (Id. at
231-32, 339-40.) The impression was of pars interarticularis defect at L5 bilaterally; Grade
I anterolisthesis L5 on S1; chronic lumbago; status-post anterior fusion/discectomy at C4-5;
bilateral neuropathic pain in his upper extremities; diabetes mellitus, Type 2; bilateral knee
osteoarthritis; obesity; and lack of conditioning. (Id. at 308.) He was prescribed Neurontin
and Baclofen, and his Naproxen prescription was renewed. (Id. at 304, 308) He was to start
physical therapy, and was to have x-rays done of his lumbar spine. (Id.)
Two weeks later, Plaintiff was evaluated for physical therapy. (Id. at 344-55.) The
precipitating event for his pain was reportedly a myelogram in 2002. (Id. at 344.) His current
pain level, and his best pain level, was an eight. (Id.) He had pain in his left arm, hand, and
knee and in his back. (Id.) Because of the pain, he had not worked as a chef since September
2003. (Id.) He was concerned about falling due to balance problems caused by medication
and wanted a cane. (Id.) Because of his left knee pain, he had difficulty walking. (Id.) He
had a limited range of motion in his lumbar spine on extension, rotation, and side bending.
(Id. at 345-46.) The therapist noted that Plaintiff's responses to the range of motion testing
"seem[ed] out of proportion to [the] activity." (Id. at 354.)
The physical therapy evaluation was continued the following week. (Id. at 356-57.)
Goals included reducing his pain level to one or two to allow for his activities of daily living

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and reducing the number of times he wakes up at night to two. (Id. at 357.) The sessions were
to be held twice a week for six weeks. (Id.) In the ten weeks between March 3 and May 12,
Plaintiff attended six physical therapy sessions. (Id. at 358-64.) At the first, March 3 session,
the therapist reported that Plaintiff was "holding back" when performing the exercises, but was
doing them without difficulty. (Id. at 358.) Without medication, his pain was a nine. (Id.)
At the next session three weeks later, the therapist opined that Plaintiff's back pain might be
better with a brace, and requested that one be ordered by his doctor. (Id. at 359.) Plaintiff's
balance was better after he had finished his medications. (Id.) Plaintiff was wearing a back
brace he had previously been given when he came for his next, April 7 session. (Id. at 360.)
He was applying for jobs. (Id.) His back pain, still present, was a seven. (Id.) The following
week, Plaintiff described his pain as an eight. (Id. at 361.) The therapist was continuing to
try to get a brace ordered for him. (Id.) Plaintiff did not think he'd be able to return to work.
(Id.) Two sessions later, on May 12, Plaintiff reported that he was trying to get disability. (Id.
at 363-64.) He was wearing a lumbar brace, which reduced his pain level to a six or seven.
(Id.) He was discharged from physical therapy. (Id.)
While participating in physical therapy sessions, Plaintiff had a March appointment at
the Pain Management Center. (Id. at 309.) He did not keep it. (Id.)
He did keep his April 9 appointment at the Pain Management Center. (Id. at 310-13.)
He reported that his chronic back pain was an eight on a ten-point scale. (Id. at 310.) It was
noted that there had been no change in his functioning. (Id. at 312.) He was to continue with

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his home exercise program and return in two months. (Id.) It was also noted that he had a
back brace. (Id.)
After his physical therapy sessions ended, Plaintiff underwent an initial psychological
evaluation on June 1by Abidemi Adegbola, M.D. (Id. at 233-40.) He reported that he had
been "[a]cting kind of down and out.'" (Id. at 238.) He had no prior psychiatric history. (Id.)
He was unable to work as a result of medical problems with his C4 and C5 cervical discs and
was waiting to hear about Social Security disability. (Id.) He had been separated from his
wife, but they were now reuniting. (Id.) They had four children, ranging in age from twentytwo years old to three years. (Id. at 239.) He described a history since 2002 of episodic poor
moods, decreased interest in daily living activities, crying spells, "catastrophizing," and
feelings of isolation. (Id. at 238.) His most recent episode of these symptoms began the past
February and lasted for two months. (Id.) Although he was continuing to have "residual
diminished interest in social activities," he was "satisfactorily" able to do his daily living
activities. (Id. at 239.) He was angry at the government because he had not been awarded
disability. (Id.) He attributed his "'depression'" to not being able to work. (Id.) He was suing
Barnes for malpractice arising from the anesthesia he had been given when undergoing a
myelogram. (Id.) Although he had had behavioral problems as a teenager, e.g., cruelty to
animals and shoplifting, he did not have an adult history of antisocial behavior. (Id.) He drank
alcohol only occasionally, smoked one pack of cigarettes a week, and no longer used street
drugs. (Id.) His current medications included Naproxen, Neurontin, Baclofen, Metformin, and
Vitamin E. (Id.) It was noted that he walked with a cane and wore a back brace. (Id. at 239-

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40.) On examination, he was pleasant and cooperative, had good eye contact and normal
speech, smiled easily, and had an euthymic affect and fair insight and judgment. (Id. at 240.)
He was alert and oriented to time, place, and person and was of an average intellect. (Id.) He
perseverated on his inability to work. (Id.) Dr. Adegbola diagnosed Plaintiff with major
depressive disorder in partial remission and a Global Assessment of Functioning (GAF) of 65.7
(Id. at 238, 240.) He noted that he had not been able to elicit from Plaintiff any of the
symptoms of depression during the evaluation. (Id. at 240.) He also noted that "[Plaintiff] is
a litigant seeking disability which might constitute a secondary gain for [him] to endorse these
symptoms." (Id.) Accordingly, Plaintiff was to be followed to determine the consistency of
those symptoms. (Id.) Dr. Adegbola prescribed Citalopram, referred Plaintiff to a social
worker, and requested that he return in six weeks. (Id.)
Two weeks later, Plaintiff had an x-ray of his cervical spine, revealing central canal
stenosis at C3 through C7. (Id. at 246-47.) There was no motion of the fused segments at C45 with flexion and extension. (Id. at 247.)
On June 21, Plaintiff reported to Charles Lieu, M.D., the physician at ConnectCare who
treated his diabetes, that he had no new complaints. (Id. at 217-18.) He walked daily. (Id. at

7

"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text
Revision 2000) [DSM-IV-TR], the Global Assessment of Functioning Scale is used to report 'the
clinician's judgment of the individual's overall level of functioning,'" Hudson v. Barnhart, 345 F.3d
661, 663 n.2 (8th Cir. 2003), and consists of a number between zero and 100 to reflect that judgment,
Hurd v. Astrue, 621 F.3d 734, 737 (8th Cir. 2010). A GAF score between 61 and 70 indicates
"[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, has some meaningful interpersonal relationships." DSM-IV-TR at
34 (emphasis omitted).
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217.) His diagnoses included Type 2 diabetes, or diabetes mellitus, and obesity. (Id.) He was
to return in four months. (Id. at 218.)
Three days later, Plaintiff was seen again at the Pain Management Center. (Id. at 31417.) He reported that he walked two blocks a day and was sleeping well. (Id. at 314.) He had
lost five pounds. (Id.) It was noted that Plaintiff was doing well on his current regimen and
had good pain control. (Id. at 315.) He did have some left knee pain, and had been started on
an antidepressant. (Id.)
On July 23, Plaintiff reported to a health care provider at Barnes Neurology Clinic that
he was satisfied with his current level of pain control. (Id. at 250-56.) He also reported having
persistent pain in his neck radiating down his left arm, particularly with movement, weakness
and numbness in his left arm, weakness in his left leg, a slight residual numbness in his left
arm, and difficulty walking. (Id.) He used a cane. (Id.) The provider noted that there had
been no neurological deterioration since Plaintiff's previous visit. (Id.) Plaintiff was to
continue going to the pain clinic and to have a magnetic resonance imaging (MRI) of his neck.
(Id.) It was noted that over-the-counter pain medications "help[ed] some." (Id. at 255.) The
MRI revealed postoperative changes of instrumentation and fusion at L4-5; degenerative disc
disease resulting in mild multi-level stenosis; and, possibly, a cord injury at C4-5. (Id. at 342,
435.) Clinical correlation of the latter was recommended. (Id.)
When seen on August 23 at the Pain Management Center, Plaintiff reported having low
back pain and left upper extremity pain. (Id. at 317-19.) The current pain level was nine on

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a ten point scale; average was six to nine. (Id. at 317) His left arm pain was worse. (Id.) He
was continuing to walk two blocks a day, but was depressed secondary to the pain. (Id.)
Four days later, at the Barnes Neurology Clinic, Plaintiff described left shoulder pain
that was a seven on a ten-point scale. (Id. at 257-63.) It was noted that there had been no
neurological deterioration since the previous visit. (Id. at 262.) An MRI of his lumbar spine
was still needed. (Id.) The MRI was performed, revealing bilateral facet osteoarthritis at L4-5
and L5-S1 levels, with the greatest severity at L5-S1 on the right side. (Id. at 343, 436.)
Plaintiff was seen again on September 3 at the Clinic. (Id. at 264-69.) The pain in his
right arm and hand was an eight on a ten-point scale. (Id. at 266.) He continued to have a
sharp pain in his left shoulder that radiated to his left arm and fingers. (Id. at 268.) He also
had numbness and tingling in his left upper extremity. (Id.) The pain was relieved by
medication. (Id.) The provider noted that Plaintiff "likely" had cervical myelopathy and
needed an injection to C3, C4, and C5. (Id.)
Six days later, Plaintiff returned to physical therapy. (Id. at 366-81.) The diagnosis was
cervical myelopathy. (Id.) The goal was to increase the range of motion in his left shoulder
and reduce his pain level to a five or six. (Id. at 367.) The sessions were to occur twice a
week for eight weeks. (Id.) At the second session, Plaintiff was reportedly sleeping better and
was to get a knee brace. (Id. at 372.) At the fifth session, he was feeling much better. At the
seventh, he was getting better, but the pain stayed the same. At the eight session, he had
shown improvement. At the tenth, on November 22, the pain was reportedly persisting.
Plaintiff was to have surgery, and was discharged from physical therapy.

- 16 -

While undergoing physical therapy, Plaintiff returned to the Pain Management Center
on October 4. (Id. at 320-27.) He described the pain in his left arm as aching, exhausting, and
constant; in his low back as numb and constant; and in his left leg below the knee as numb.
(Id. at 321.) The pain was worse in the afternoon, was aggravated by movement, and was
lessened by medication and relaxing with his feet up. (Id.) On a ten-point scale for the degree
to which it interfered with his activities of daily living, the pain was a seven – between
partially and greatly interfering. (Id.) His weight was 210 pounds, and had not changed since
his last visit. (Id. at 323.) It was noted that he had seen a neurosurgeon for his neck and had
declined the offer of surgery. (Id. at 324.) He had an antalgic gait and walked with a cane.
(Id. at 325.) He had decreased sensation in his left hand and decreased strength in his left
upper extremity. (Id. at 325, 327) He had normal strength in his right upper extremity and his
left lower extremity. (Id. at 327.) The diagnoses were cervical disc bulges from C3-4 with
mild stenosis, disc bulge at L5-S1, and lumbar facet degenerative joint disease at L4-5 and L5S1. (Id.) He was to have a lumbar epidural steroid injection at C5-6 and to continue taking
Neurontin and Naprosyn. (Id.) He was to consider pain intervention for the lumbar spine, if
necessary. (Id.)
One week later, Plaintiff was seen by Dr. Lieu for his diabetes and obesity. (Id. at 21920.) He reported that he was feeling well after having an injection in his neck for neuropathy.
(Id. at 219.) He was to follow-up in four months. (Id.)

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The following week, Plaintiff called the provider at the Pain Management Center to
advise that he had decided to undergo surgery and would not be having the steroid injection.
(Id. at 328.)
Plaintiff was seen at the Barnes emergency room on November 24. (Id. at 270-82.) He
reported that he almost fell off a second-story balcony. (Id. at 271.) He had pain on the right
side, unrelieved by medication, and thought he had twisted his back. (Id.) X-rays of his chest
and right ankle revealed contusions on both and were otherwise normal. (Id. at 274, 275.)
Plaintiff was prescribed Oxycodone and Cyclobenzaprine, each to be taken as needed. (Id. at
273, 274.)
Plaintiff returned to the Pain Management Center on December 6. (Id. at 329-34.) He
described his pain as being an average of six on a ten-point scale. (Id. at 329.) The pain was
in his lower middle back and left arm, hand, and knee. (Id.) It was aggravated by standing too
long, lifting, or bending. (Id.) It was alleviated by lying flat on his back. (Id.) Surgery on his
neck was scheduled for the winter. (Id. at 332.) Plaintiff was to continue taking Neurontin
and Naprosyn and to follow up as needed. (Id. at 334.)
The same day, Plaintiff began physical therapy for chronic back pain. (Id. at 382-92.)
The sessions were to be once a week for six weeks. (Id. at 383.) At the third session, Plaintiff
reported that his back was okay; his arm and hand were bothersome. At the next session, he
complained of leg spasms during treatment and appeared to be plateauing. After the fifth
session, he did not return and was discharged.

- 18 -

Plaintiff was seen at the Neurology Clinic in January 2005 for pain in his left shoulder
and arm. (Id. at 283-90.) He was to continue with physical therapy – he was then in the
middle of his sessions – and nerve root injections. (Id. at 287.) He was to return in three
months, at which time an MRI of cervical spine would be performed. (Id.)
In April, Plaintiff saw Dr. Lieu. (Id. at 221-22.) He weighed 210.5 pounds and
complained of left knee pain. (Id.) He was to follow-up with the Barnes Neurology Clinic and
Pain Management Center for his cervical myelopathy, and was to have an x-ray of his left
knee. (Id.) A reduced calorie diet was discussed. (Id.)
The following month, an MRI was performed at Missouri Baptist Medical Center,
revealing status-post instrumentation and fusion procedure at C4-5; mild multi-level stenosis;
and protrusions of the discs at C5-6 and C6-7. (Id. at 437.) As before, there was a question
of cord atrophy and injury, for which clinical correlation was recommended. (Id.)
Plaintiff returned to the Barnes Neurology Clinic in June. (Id. at 291-95.) A notation
mistakenly reads that the MRI had not been done yet. (Id. at 294.) Plaintiff was to continue
with physical therapy and return in six months. (Id.) X-rays taken of his cervical spine
revealed status-post anterior cervical spinal fusion procedure at C4-C5 with no motion with
flexion or extension and mild diffuse central canal stenosis of the cervical spine. (Id. at 295.)
Plaintiff began physical therapy in July. (Id. at 393-400.) The following week, he
reported some complaints of pain and greater difficulty getting in and out of the car. He was
not wearing braces. At the second session the next week, he reported that his cane kept him
from falling down and his medications made him sleepy. Two weeks later, he reported a

- 19 -

decrease in low back pain during aqua therapy. On August 9, it was noted that Plaintiff was
making progress and would benefit from more appointments. He was not in pain, was using
a cane, and was to follow-up as needed.
Plaintiff's next medical record is of his December visit to Lawrence Wells, M.D., at the
Myrtle Hilliard Davis Comprehensive Health Center (Davis Health Center) for complaints of
stuffiness at night and status-post C4-5 discectomy. (Id. at 439.)
Plaintiff returned to Dr. Wells in March 2006 for a routine check-up of his diabetes.
(Id. at 440, 471, 493.) He reported having pain in his back, left leg, hands, and arms. (Id. at
440, 471.) The pain was an eight on a ten-point scale. (Id.) He had not taken any pain
medication that day. (Id.) He needed a referral to a neurologist for his neck pain. (Id.)
A computed tomography (CT) scan taken in April of his cervical spine revealed a small
posterior central osteophyte at C4 near C4-5 in addition to the fusion device at C4-5. (Id. at
434, 445.)
When Plaintiff saw Dr. Wells in June, he wore a back brace and left knee brace. (Id.
at 441-42, 471-73.) His diabetes was controlled; his neck pain was not. (Id. at 441.) He was
referred to an orthopedist for evaluation of the instability of his left knee and his cervical
radiculopathy. (Id.)
Consequently, Plaintiff was evaluated by an orthopedist8 six days later. (Id. at 430-31.)
Plaintiff reported complaints of pain in his neck, low back, and left upper extremity for the past
five years. (Id. at 430.) The pain had worsened in the past year. (Id.) And, he was beginning

8

The report is not signed.
- 20 -

to experience pain in his right upper extremity. (Id.) His current medications included
Metformin, Naproxen, Gabapentin, Amitriptyline, and Flonase. (Id.) He reported that he has
been disabled since 2002. (Id. at 431.) He wore a left knee brace, and walked with a
decreased stride on the left due to knee pain. (Id.) On examination, Plaintiff had no obvious
muscle weakness and had normal motor bulk and tone in both upper and lower extremities.
(Id.) Due to pain, his range of motion in his cervical spine was decreased in lateral flexion and
on extension. (Id.) His range of motion was also decreased in his left shoulder and lumber
spine. (Id.) Spurling's test was negative,9 as was Patrick's test.10 (Id.) Hawkin's sign11 and
Neer's test12 were positive on the left. (Id.) The impression was of cervical degenerative joint
disease, possible left C6-7 radiculitis, cervical stenosis, possible lumbar degenerative joint

9

"In a patient with neck pain or pain that radiates below the elbow, a useful maneuver to
further evaluate the cervical spine is Spurling's test. The patient's cervical spine is placed in extension
and the head rotated toward the affected shoulder. An axial load is then placed on the spine.
Reproduction of the patient's shoulder or arm pain indicates possible cervical nerve root compression
and warrants further evaluation of the bony and soft tissue structures of the cervical spine." Perkins
v. Astrue, 2011 WL 4378165, * 8 n.20 (E.D. Mo. 2011) (citing American Family Physician, The
Painful Shoulder: Part I. Clinical Evaluation (May 15, 2000), available at:
http://www.aafp.org/afp/20000515/3079.html).
10

Patrick's test "is used to identify the presence of hip pathology by attempting to reproduce
pain in the hip, lumbar spine and sacroiliac region." Rice v. Astrue, 2013 WL 275584, *4 n.3 (E.D.
Mo. 2013). "It is positive if the test produces pain in the hip or sacral joint or if the leg cannot be
lowered to the point of being parallel to the opposite leg." Price v. Astrue, 2011 WL 4378210, *5
n.6 (E.D. Mo. 2011).
11

The Hawkin's sign is a subchondral radiolucent band seen on x-rays of a bone after six to
eight weeks of disuse or immobilization. Edwin F. Donnelly, M.D., The Hawkins Sign,
http://radiology.rsna.org/content/210/1/195.full (last visited Feb. 20, 2013).
12

The Neer's test is used to diagnosis subacromial impingement and is performed by placing
the arm in forced flexion with the arm fully pronated. Thomas W. Woodward, M.D., and Thomas
M. Best, M.D., Ph.D., The Painful Shoulder:
Part I. Clinical Evaluation,
http://www.aafp.org/afp/2000/0515/p3079.html (last visited Feb. 20, 2013).
- 21 -

disease, and left rotator cuff tendinitis. (Id.) The doctor recommended (a) use of analgesics
and nonsteroidal anti-inflammatory drugs (NSAIDS) and (b) an exercise program for
rehabilitation of the cervical spine, lumber spine, and left shoulder. (Id.)
The following month, Plaintiff was evaluated again by an orthopedist, Katherine A.
Burns, M.D., for complaints of left knee pain. (Id. at 432-33.) He walked with "a mildly
antalgic gait favoring the left side." (Id. at 432.) The left knee was not swollen and had a
range of motion from 0 to 130 degrees. (Id.) He had some quad atrophy and weakness in his
left side compared to the right side. (Id.) Although he complained of diffuse pain, his knee
was ligamentously stable. (Id.) The diagnosis was left knee pain of unclear etiology and right
bipartite patella. (Id.) Dr. Burns gave him a home exercise program. (Id. at 433.) He was to
engage in activities as tolerated and follow up with her as needed. (Id.)
Four months later, Plaintiff returned to Dr. Wells with complaints of nasal congestion
and pain in his low back and left arm and hand. (Id. at 442-43, 473-74, 492.) Plaintiff was to
follow-up for medication refills. (Id. at 442.)
Plaintiff next saw Dr. Wells in February 2007 to request stronger pain medications. (Id.
at 476-77, 501-02.)
On May 18, complaining of back and neck pain for the past three days, Plaintiff was
taken by ambulance to the emergency room at Barnes. (Id. at 447-58.) He reported that he had
had chronic back pain since high school. (Id. at 449.) He had been running out of pain
medications for the last month. (Id. at 450.) He sporadically took Naproxen. (Id.) Plaintiff
described his pain as being gradual in onset and worse with movement. (Id.) He could not

- 22 -

remember any injury to his neck or back, "but state[d] he ha[d] been walking to get his kids
a lot recently." (Id. at 449.) On examination, his neck was normal, supple, and not tender. (Id.
at 451.) Straight leg raises were negative. (Id.) His left upper and lower extremities were
weak, An x-ray of his thoracic spine was negative. (Id. at 458.) He was given hydromorphone,
diagnosed with back pain, and discharged in stable condition. (Id. at 449, 452, 453.)
Four days later, he was again seen in an emergency room for complaints of back pain.
(Id. at 461-68.)
The following day, on May 23, Dr. Wells noted that Plaintiff had been given a
prescription for Percocet, but had not gotten it filled. (Id. at 478-79, 481-83, 492, 499-500.)
Plaintiff was given a prescription for Vicodin. (Id. at 479.)
In September, Plaintiff saw Dr. Wells for a follow-up appointment and a refill of his
prescriptions. (Id. at 497-98.)
In November, he went to Dr. Wells to have his medication prescriptions rewritten. (Id.
at 497.) He had moved and lost all his medications. (Id.) He informed Dr. Wells that Vicodin
was not helping. (Id.)
Plaintiff told Dr. Wells when he saw him in December that he did not need medication
refills. (Id. at 495-96.) Plaintiff complained of neck, right foot, and left elbow pain – the last
two being caused by a fall. (Id. at 495.) He had been referred to the pain management clinic
at St. Louis University, but his insurance would not cover it. (Id. at 495.) He wanted a referral
to the Barnes Pain Management Center and to a neurosurgeon. (Id.) Aside from the fall, he
had had no decline in health since his last visit. (Id.) He was given both referrals, scheduled

- 23 -

for x-rays of his right foot and left elbow, and to return in one month for medication refills.
(Id. at 496.) X-rays of his left elbow revealed a small olecranon spur. (Id. at 490.) X-rays of
his right foot revealed a bone spur over the dorsal aspect of the neck of the talus. (Id. at 491.)
Plaintiff's medical records from 2008 consist of three visits to Dr. Wells, with the first
being in May for a follow-up for his diabetes, hypertension, cervical fusion, and peripheral
neuropathy. (Id. at 484-87.) Plaintiff had complaints of pain from left shoulder to hand and
back pain. (Id. at 484.) He had no numbness or tingling in his limbs. (Id.) He needed refills
of his pain medications. (Id.) It was noted that he had good exercise habits, walked daily, and
was in no acute distress. (Id. at 484, 485.) On examination, his musculoskeletal system was
normal. (Id. at 486.) His neck had no decrease in suppleness. (Id. at 485.) His medications
included Percocet. (Id. at 486.) Plaintiff was to return in three months, and did. (Id.) In
August, he saw Dr. Wells for a follow-up for his diabetes, refills of prescriptions, a and referral
to pain management. (Id. at 530-32.) As before, he was reported to have good exercise habits.
(Id. at 530.) "WALKS" was written in capital letters. (Id.) His functional status was "[n]o
physical disability and activities of daily living were normal." (Id.) His back was described
as normal, his neck as demonstrating no decrease in suppleness. (Id. at 531.) The assessment
was of rhinitis; uncomplicated, controlled diabetes; peripheral neuropathy; and cervicalgia.
(Id. at 532.) He was to be referred to pain management and return in three months. (Id.) His
prescriptions were refilled. (Id.)
Plaintiff returned to Dr. Wells in November. (Id. at 526-29.) At this, follow-up visit,
his exercise habits were described as poor; his functional status was unchanged. (Id. at 526.)

- 24 -

He had been given a referral to pain management, but had not gotten an appointment yet. (Id.
at 527.)
In addition to the foregoing records of Plaintiff's medical treatment, the ALJ had before
him the assessments of examining and non-examining consultants. One set of assessments
was completed in 2005; a second set was completed in 2008.
In February 2005, Plaintiff underwent a neuropsychiatric evaluation by John S. Rabun,
M.D. (Id. at 401-05.) Plaintiff's chief complaint was trouble with his left arm. (Id. at 401.)
He reported being in treatment with a psychiatrist for a major depressive disorder that had
begun following his surgery for cervical disc disease, but he was not taking any psychiatric
medication. (Id. at 401, 402.) He was unable to work due to increased cervical pain and to
numbness and decreased strength in his left upper extremity. (Id. at 402.) Because of his lack
of employment, he was depressed, more emotional, did not enjoy formerly enjoyable activities,
felt "'worthless,'" and lacked energy. (Id. at 401-02.) He occasionally thought of suicide, but
had no plans to take his life. (Id. at 402.) On examination, Plaintiff had normal muscle tone
and bulk, and no muscle atrophy. (Id.) He complained of pain and tenderness in his lumbar
region, cervical spine, and left shoulder. (Id.) He had a normal range of motion in his knees,
elbows, and right shoulder, but a decreased range in his left shoulder on flexion and abduction.
(Id. at 402, 405.) He demonstrated a reduced range of motion in his lumbar spine to ten
degrees on flexion and extension, but was observed at the end of the evaluation when picking
up his cane to have a full range of motion in the lumbar spine without pain. (Id. at 402, 406.)
He had a reduced range of motion in his cervical spine. (Id.) His strength in his right hand

- 25 -

and upper and lower extremities was 5/5. (Id. at 402-03, 405.) In his left hand and upper and
lower extremities, his strength was 4/5. (Id. at 403, 405.) He had normal fine finger
movements in both hands. (Id. at 403.) He could not walk in a tandem manner or on heels and
toes due to his low back pain. (Id.) When walking with Dr. Rabun to the office, Plaintiff
walked slowly and used a cane; when leaving the officer, he walked "much quicker," but still
used the cane. (Id.) Plaintiff informed Dr. Rabun that he needed the cane for balance;
however, he could slowly walk without the cane during the neurological examination. (Id.)
Plaintiff complained of depression, but did not show any symptoms indicative of a severe
episode of depression, e.g., changes in affect, speech, or psychomotor activity. (Id.) His flow
of thought was logical, sequential, and goal-directed; his speech was soft, but adequately
modulated; his affect was serious and guarded; his mood was "'emotional'"; his insight and
judgment were "preserved." (Id. at 403-04.) His recent and remote memory were intact. (Id.)
Dr. Rabun diagnosed Plaintiff with depressive disorder, not otherwise specified (NOS),13 and
assessed his current GAF as 60.14 (Id. at 404.) He summarized his findings as follows.

13

According to the DSM-IV-TR, each diagnostic class, e.g., adjustment disorder, has at least
one "Not Otherwise Specified" category. DSM-IV-TR at 4. This category may be used in one of
four situations: (1) "[t]he presentation conforms to the general guidelines for a mental disorder in the
diagnostic class, but the symptomatic picture does not meet the criteria for any of the specific
disorders"; (2) "[t]he presentation conforms to a symptom pattern that has not been included in the
DSM-IV but that causes clinically significant distress or impairment"; (3) the cause is uncertain; or
(4) there is either insufficient data collection or inconsistent, contradictory information, although the
information that is known is sufficient to place the disorder in a particular diagnostic class. Id.
14

A GAF score between 51 and 60 indicates "[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR at 34
(emphasis omitted).
- 26 -

Although [Plaintiff] complained of symptoms found in depression, he did not
show changes in speech, psychomotor activity, affect, or concentration
consistent with a severe episode of major depression. He also did not display
disruptions in his concentration or memory due to his depression. Further, he
has the ability to interact appropriately in a social setting and adapt to changes
in his environment, if he chooses to do so. [Plaintiff] complained of pain in his
cervical and lumbar region, though he had full range of motion in his lumbar
region when he was picking up his cane, and not being formally tested. When
formally tested, he only was able to flex his lower back to 10 degrees. This
finding suggests some level of exaggeration on [Plaintiff's] part. [Plaintiff] may
have some limitations due to his pain and disk disease, though not as significant
as he portrays.
(Id.)
An x-ray taken in March of Plaintiff's cervical spine showed a stable interbody at the
C4- level. (Id. at 407.) An x-ray of his left shoulder was negative. (Id.)
That same month, a Physical Residual Functional Capacity Assessment (PRFCA) of
Plaintiff was completed by a non-medical evaluator. (Id. at 408-15.) The primary diagnosis
was a herniated disc at C4-5, post fusion; the secondary diagnosis was cervical myelopathy.
(Id. at 408.) These impairments resulted in exertional limitations of Plaintiff being able to
occasionally lift or carry twenty pounds; frequently lift or carry ten pounds; and, stand, walk,
or sit for approximately six hours in an eight-hour day. (Id.) Plaintiff had postural limitations
of only occasionally balancing, stooping, kneeling, crouching, crawling, and climbing ramps
and stairs. (Id. at 410.) He should never climb ladders, ropes, or scaffolds. (Id.) He also had
manipulative limitations of being limited in his abilities to reach and feel. (Id. at 411.) He had
no visual, communicative, or environmental limitations. (Id. at 411-12.)
Also in March, a Psychiatric Review Technique form (PRTF) was completed for
Plaintiff by Terry L. Dunn, Ph.D. (Id. at 416-29.) Plaintiff was described as having an
- 27 -

affective disorder, i.e., depressive disorder, NOS, which resulted in Plaintiff having mild
restrictions of activities of daily living and mild difficulties in maintaining concentration,
persistence, or pace, but in no difficulties in maintaining social functioning. (Id. at 416, 419,
426.) The impairment did not cause any episodes of decompensation of extended duration.
(Id. at 426.)
In August 2008, Plaintiff underwent a psychological evaluation by L. Lynn Mades,
Ph.D. (Id. at 503-11.) He reported that he was last employed in 2005 as a line server in a
cafeteria. (Id. at 503.) He complained of problems standing and walking and problems with
his back, knees, and hands. (Id.) During the examination, "[h]e cried seeming for effect,
starting and stopping quickly, complaining of feeling 'tired.'" (Id.) "He claimed that his hand
'had a mind of it's [sic] own,' even though he showed no difficulties manipulating objects."
(Id.) He reported that he had seen a doctor for depression sometime between 2003 and 2004,
but could not recall the name of the doctor. (Id. at 504.) Although he used to be outgoing, he
was now isolated and irritable. (Id.) His current prescriptions included Gabapentin,
Amitriptyline, Naproxen, Metformin, Loratadine, Fluticasone, and Viagra, but, with the
exception of the Viagra, none had apparently been used since being filled three weeks earlier.
(Id.) He had one year of college. (Id. at 505.) He had not been in special education classes,
but had had some behavior problems in school, had been suspended several times, and had
been expelled once. (Id.) His longest period of employment had been for two to three years.
(Id.) On examination, he was generally cooperative and pleasant, had an alert expression and
good eye contact, and walked with a cane, although he did not appear to need it for support.

- 28 -

(Id.) He exhibited "unusual pain behaviors, with sudden grabbing of his shoulder or legs and
crying out . . . ; once he was engaged in conversation, this behavior disappeared." (Id.) His
speech was normal; his mood was euthymic to mildly depressed; his affect was full and
generally appropriate; and his thought content was logical and without disturbances or
delusions. (Id. at 505-06.) His insight and judgment were "[s]lightly limited." (Id. at 506.)
His activities of daily living included taking care of such household chores as setting the table
and working in the kitchen. (Id. at 507.) He got along adequately with others, although he was
sometimes irritable. (Id.) Dr. Mades diagnosed Plaintiff with depressive disorder, NOS, and
a GAF between 75 and 80.15 (Id.) She also noted that:
[Plaintiff] presents with multiple pain complaints, and with further questioning
claimed problems with depression. He reported little in the way of depressive
symptoms, however, and in general gave an unusual and exaggerated
presentation highly suggestive of malingering. While there may be some
underlying difficulties, his presentation showed multiple examples of
significantly exaggerated complaints, including what appeared to be crying on
cue, unusual pain behaviors not seen in chronic pain patients, and pain
behaviors disappearing when engaged in conversation. No evidence of thought
disturbance was noted during today's examination, and there was evidence of
possible mild mood impairment by history and presentation.
(Id. at 507-08.)
Completing a Medical Source Statement of Ability to Do Work-Related Activities
(Mental), Dr. Mades opined that Plaintiff's impairments did not affect his ability to (1)

15

A GAF between 71 and 80 is described as "[i]f symptoms are present, they are transient and
expectable reactions to psycho-social stressors . . . ; no more than slight impairment in social,
occupational, or school functioning . . . ." DSM-IV-TR at 34.
- 29 -

understand, remember, and carry out instructions, (2) interact appropriately with supervisors,
co-workers, and the public, and (3) any other capabilities. (Id. at 509-10.)
The same day, Plaintiff underwent a physical evaluation by Jack C. Tippett, M.D. (Id.
at 512-23.) Plaintiff reported that he worked as a chef until 2001. (Id. at 512.) He then
thought that he had a grease burn to his left hand because he did not seem to have any feeling
in that hand. (Id.) He had been unable to have an MRI of the hand due to being
claustrophobic. (Id.) He did have a myelogram, but did not like the doctor who performed it.
(Id.) Since that time, he has had pain in his low back and weakness in his left upper extremity
and, to some extent, in his right upper extremity. (Id.) Approximately the same time, his right
knee started to bother him; recently, his left knee has begun to hurt. (Id.) He wears a back
brace and has removable knee supports. (Id.) Also, his right shoulder is sore. (Id.) When first
seen in the examining room, he appeared to be asleep and "seemed to wake up when
convenient." (Id. at 513.) He carefully rose from the chair, explaining that he could only walk
when using a cane and wearing knee supports. (Id.) He could not stand on his toes or heels;
he could not squat or bend forward. (Id.) When asked to demonstrate his range of motion in
his neck, "he demonstrate[d] very little motion." (Id.) There was no muscle spasm. (Id.) He
had "some tenderness" in his low back, but was able to tilt only slightly to the left and right and
could not bend forward. (Id.) He was reluctant to move his left shoulder or left elbow. (Id.)
He had a normal range of motion in his wrists and hands. (Id.) The strength of his grasp with
his right hand was 4/5 and with his left was 3/5. (Id.) "However, when he [was] removing the
braces and placing them on his knees, he required perfectly normal strength with the right hand

- 30 -

and strength of 4/5 on the left side." (Id. at 513-14.) Dr. Tippett noted that Plaintiff is righthanded. (Id. at 514.) Dr. Tippett's diagnosis was of status- post cervical discectomy with
persisting weakness and numbness in his left upper extremity; chronic low back strain;
unexplained soreness in both knees; and exaggeration of complaints throughout his body. (Id.)
The weakness in Plaintiff's neck was present, but "seemed to be exaggerated during th[e]
examination." (Id.)
On a Medical Source Statement of Ability to Do Work-Related Activities (Physical),
Dr. Tippett opined that Plaintiff could occasionally lift and carry up to ten pounds with his
right hand and less than that with his left; could sit for forty minutes at any one time without
interruption and up to a total of eight hours in an eight-hour day; and could stand or walk for
five minutes at any one time. (Id. at 515-16.) He needed a cane for support when walking.
(Id. at 516.) With his right hand, he could occasionally handle and finger and continuously
feel. (Id. at 517.) He should never push or pull with that hand. (Id.) With his left hand, he
could occasionally handle and frequently feel, but should never reach, finger, or push and pull.
(Id.) He should never operate foot controls due to knee problems and a decrease in motivation.
(Id.) He could occasionally climb stairs and ramps, balance, and stoop, but should never kneel,
crouch, crawl, or climb ladders or scaffolds. (Id. at 518.) He should also never operate a
motor vehicle or be around unprotected heights and moving mechanical parts. (Id. at 519.) He
could occasionally be around extreme cold and frequently be around extreme heat, humidity,
and various pulmonary irritants, e.g., dust and fumes. (Id.) He could engage in such activities
as preparing meals and walking a block at a reasonable pace on rough or uneven surfaces, but

- 31 -

should not engage in such activities as using standard public transportation or sorting or
handling papers and files. (Id. at 520.)
The ALJ's Decision
After first noting that Plaintiff had previously been found, pursuant to earlier
applications, to be disabled by his cervical spine discectomy and fusion surgery from January
24, 2003, through January 31, 2004, the ALJ then summarized Plaintiff's testimony in the two
earlier hearings and the findings of the two prior decisions entered in Plaintiff's current case.
(Id. at 21-23.) He found that Plaintiff had impairments of "mild obesity, status-post cervical
spine discectomy and fusion, diabetes mellitus with peripheral neuropathy, chronic low back
strain, minor degenerative changes of the left elbow and right foot, a history of various other
minor or acute musculoskeletal impairments, rhinitis, hyperlipidemia, erectile dysfunction, and
a mild depressive disorder not otherwise specified . . . ." (Id. at 29.) These disorders, singly
or in combination, did not meet or equal an impairment of listing-level severity." (Id.)
The ALJ noted that Plaintiff's activities included helping his children with their
homework, volunteering as a hall monitor and front desk clerk at their school two or three days
a week for all day, riding with them to school and back on the bus, going on outings with them
and their aunt, and going to the library once a week. (Id. at 24.) The ALJ also noted that
Plaintiff had had an excellent work record through 2001, and that Plaintiff had continued to
complain of upper extremity and neck pain in 2007 and wore a back support. (Id. at 25.)
The ALJ next summarized the results of the two 2008 consultative examinations, and
then concluded that Plaintiff's combined musculoskeletal impairments prevented him from

- 32 -

performing his past relevant work. (Id. at 25-26.) Plaintiff could, however, perform sedentary
work with additional limitations of no climbing of ropes, ladders, or scaffolds; no use of the
nondominant left upper extremity for fine manipulation or overhead reaching; and only
occasional balancing, stooping, kneeling, crouching, crawling, or climbing of ramps. (Id. at
26.) According to the VE, there were jobs a claimant with these limitations could perform.
(Id.)
The ALJ noted the VE's testimony that Plaintiff "would be unemployable if he needed
a cane for nearly all standing and walking functions including riding public transportation, or
if he could not use his hands and fingers for normal gross or fine manipulation, or if his
attention and concentration were severely restricted because of pain or depression, or if the
physical restrictions noted by Dr. Tippett . . . were medically accurate," but found that these
limitations were not supported by the record. (Id. at 27.) For instance, Plaintiff's various
musculoskeletal complaints were not well-defined and, in some respects, were exaggerated or
not medically established. (Id.) His diabetes was "well controlled" and had not resulted in any
secondary damage. (Id.) He had "had only periodic routine outpatient treatment in recent
years." (Id.) "He ha[d] run out of medications several times, but there [was] no evidence that
he ha[d] every been refused outpatient or inpatient medical treatment, medication or mental
health counseling because of inability to pay." (Id.) None of his treating physicians have
found, explicitly or implicitly, "that he is disabled or totally or seriously incapacitated" or have
placed any specific long-term limitations on his physical functioning, e.g., his abilities to sit
and stand. (Id.) The restrictions listed by Dr. Tippett in his Medical Source Statement were

- 33 -

subjective. (Id.) And, Dr. Wells, the treating physician with the longest longitudinal picture
of Plaintiff, noted on the most recent medical record that Plaintiff was not significantly limited
in his daily activities. (Id.) With respect to Plaintiff's use of a cane, the ALJ found his need
for such was "somewhat ambiguous,'" noting that Plaintiff had testified at the hearing "that he
had 'forgot' to bring his cane . . . ." (Id. at 28.)
The ALJ further found that Plaintiff''s allegations of limitations that would preclude all
sustained work activity were not credible. (Id. at 28-29.)
For the foregoing reasons, the ALJ concluded that Plaintiff was not disabled within the
meaning of the Act. (Id. at 29-33.)
Legal Standards
Under the Act, the Commissioner shall find a person disabled if the claimant "is unable
to engage in any substantial activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a continuous period of
not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The impairment suffered must be
"of such severity that [the claimant] is not only unable to do his previous work, but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether . . . a specific job
vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C.
§ 1382c(a)(3)(B).
The Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Moore v. Astrue, 572 F.3d 520, 523 (8th

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Cir. 2009); Ramirez v. Barnhart, 292 F.3d 576, 580 (8th Cir. 2002); Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2002). "Each step in the disability determination entails a
separate analysis and legal standard." Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir.
2006). First, the claimant cannot be presently engaged in "substantial gainful activity." See
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the claimant must have a severe
impairment. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe impairment is
"any impairment or combination of impairments which significantly limits [claimant's] physical
or mental ability to do basic work activities . . . ." 20 C.F.R. §§ 404.1520(c), 416.920(c).
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) and Part 404, Subpart P, Appendix 1.
If the claimant meets these requirements, he is presumed to be disabled and is entitled to
benefits. Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). "[RFC] 'is not the ability merely to lift weights occasionally in a doctor's
office; it is the ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real world.'"
Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (quoting McCoy v. Schweiker, 683 F.2d
1138, 1147 (8th Cir. 1982) (en banc)). "'[A] claimant's RFC [is] based on all relevant evidence

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including the medical records, observations of treating physicians and others, and an
individual's own description of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix,
465 F.3d at 887).
In determining a claimant's RFC, the ALJ must evaluate the claimant's credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall, 274 F.3d at 1217. This
evaluation requires that the ALJ consider "'(1) the claimant's daily activities; (2) the duration,
intensity, and frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage,
effectiveness, and side effects of medication; (5) any functional restrictions; (6) the claimant's
work history; and (7) the absence of objective medical evidence to support the claimant's
complaints.'" Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Moore, 572 F.3d
at 524). "Although 'an ALJ may not discount a claimant's allegations of disabling pain solely
because the objective medical evidence does not fully support them,' the ALJ may find that
these allegations are not credible 'if there are inconsistencies in the evidence as a whole.'" Id.
(quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). Moreover, an ALJ is not
required to methodically discuss each of the relevant credibility factors, "'so long as he
acknowledge[s] and examine[s] those considerations before discounting a claimant's subjective
complaints.'" Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012) (quoting Partee v.
Astrue, 638 F.3d 860, 865 (8th Cir. 2011)).
At step four, the ALJ determines whether claimant can return to his past relevant work,
"review[ing] [the claimant's] [RFC] and the physical and mental demands of the work [claimant
has] done in the past." 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The burden at step

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four remains with the claimant. Moore, 572 F.3d at 523; Dukes v. Barnhart, 436 F.3d 923,
928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If, as in the instant case, the ALJ holds at step four of the process that a claimant cannot
return to past relevant work, the burden shifts at step five to the Commissioner to establish that
the claimant maintains the RFC to perform a significant number of jobs within the national
economy. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258
F.3d 820, 824 (8th Cir. 2001). The Commissioner may meet her burden by eliciting testimony
by a VE, Pearsall, 274 F.3d at 1219, based on hypothetical questions that "'set forth
impairments supported by substantial evidence on the record and accepted as true and capture
the concrete consequences of those impairments,'" Jones v. Astrue, 619 F.3d 963, 972 (8th
Cir. 2010) (quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th Cir. 2007)).
If the claimant is prevented by his impairment from doing any other work, the ALJ is
to find the claimant to be disabled. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The ALJ's decision – adopted by the Commissioner when the Appeals Council denied
review – whether a person is disabled under the standards set forth above is conclusive upon
this Court "'if it is supported by substantial evidence on the record as a whole.'" Wiese v.
Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). "'Substantial evidence is relevant evidence that a reasonable mind would accept
as adequate to support the Commissioner's conclusion.'" Perkins v. Astrue, 648 F.3d 892, 897
(8th Cir. 2011) (quoting Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)). When
reviewing the record, however, the Court '"must consider evidence that both supports and

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detracts from the ALJ's decision, but [may not] reverse an administration decision simply
because some evidence may support the opposite conclusion.'" Id. (quoting Medhaug, 578
F.3d at 813). "'If, after reviewing the record, the [C]ourt finds it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the ALJ's
findings, the [C]ourt must affirm the ALJ's decision.'" Id. (quoting Medhaug, 578 F.3d at 897).
See also Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (the ALJ's denial of benefits is not
to be reversed "so long as the ALJ's decision falls within the available zone of choice")
(internal quotations omitted).
Discussion
Plaintiff argues that the ALJ erred by failing to (1) properly consider, discuss, and weigh
the opinion of Dr. Tippett about his functional limitations; (2) include all of Plaintiff's
exertional limitations, including the severe limitations in the use of his hands as explained by
Dr. Tippett, in the hypothetical questions asked the VE; and (3) properly assess his credibility
and instead focusing on a few activities that can be accommodated by a structuring of his day.
The Commissioner disagrees.
Dr. Tippett, a consulting examiner, opined that Plaintiff could, among other things,
occasionally lift and carry up to ten pounds with his right hand and less than that with his left;
could sit for forty minutes at any one time without interruption; could stand or walk for only
five minutes at any one time; had to use a cane when walking; could only occasionally handle
and finger with his right hand; could occasionally handle and frequently feel with his left hand;
could not push or pull with either hand; and could not operate foot controls. These limitations

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are far more restrictive than those included by the ALJ in his RFC assessment. Plaintiff argues
that this exclusion is error.
"'It is well settled that an ALJ may consider the opinion of an independent medical
advisor as one factor in determining the nature and severity of a claimant's impairment.'"
Hacker v. Barnhart, 459 F.3d 934, 939 (8th Cir. 2006) (quoting Harris v. Barnhart, 356 F.3d
926, 931 (8th Cir. 2004)). When determining the weight to be given that opinion, the ALJ is
to consider the factors in 20 C.F.R. §§ 404.1527(c), 416.927(c), including the examining
relationship, the length of the treatment relationship and the frequency of the examination, the
nature and extent of the treatment relationship, supportability, and consistency.
Dr. Tippett did not have a treatment relationship with Plaintiff. Rather, his relationship
with Plaintiff was as a one-time examining consultant.16 The opinion of a consulting physician
is not entitled to any special weight. Kirkby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007);
accord Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004). See also Partee, 638 F.3d
at 864 (finding that ALJ "reasonably questioned" medical opinion when that opinion was
outcome of disability evaluation).
Consideration of the "supportability" factor does not favor granting Dr. Tippett's
opinion any weight. The "supportability" factor provides that "[t]he more a medical source
presents relevant evidence to support an opinion . . . the more weight" is to be given that
opinion. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Also, "[t]he better an explanation a

16

Dr. Tippett is identified only as an "M.D." and does not appear to be a specialist in any area.
See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5) (listing specialization as one of the factors to be
considered when weighing a medical opinion).
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source provides for an opinion, the more weight" is to be given that opinion. Id. The only
support for the limitations found by Dr. Tippett is Plaintiff's description of such,17 yet Dr.
Tippett's examination findings consistently refer to Plaintiff exaggerating his symptoms. For
instance, Plaintiff demonstrated decreased grip strength on examination, but was observed to
have greater strength when using his hands for an unrelated purpose. Based on Plaintiff's
complaints, Dr. Tippett concluded he could not stand or walk for longer than five minutes and
that he needed a cane for support; however, Plaintiff (a) informed the health care providers at
the emergency room that he had been frequently walking, (b) had testified that he walked with
his children to the bus, including without use of his cane, (c) informed Dr. Wells, his treating
physician, that he walked for exercise, (d) had forgotten his cane when at the third
administrative hearing, and (e) had been observed at one consulting examination walking
without relying on a cane. This reliance on Plaintiff's subjective complaints is further
illustrated by Dr. Tippett's conclusion that Plaintiff should not use public transportation,
although Plaintiff rode with his children to their school on a public bus two or three times a
week. Dr. Tippett having clearly based his opinion about Plaintiff's exertional limitations on
Plaintiff's subjective complaints, the ALJ did not err in not giving that opinion controlling
weight. See Renstrom, 680 F.3d at 1065 (ALJ properly gave treating physician's opinion noncontrolling weight when that opinion was largely based on claimant's subjective complaints
and was inconsistent with other medical experts); McCoy v. Astrue, 648 F.3d 605, 617 (8th

17

As noted by the Commissioner, the objective medical evidence, i.e., the MRIs, the x-rays,
and the CT scans, routinely fail to reveal any findings supportive of Dr. Tippett's opinion. See
Commissioner's Brief at 6.
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Cir. 2011) (rejecting claimant's challenge to lack of weight given treating physician's evaluation
of claimant's mental impairments when "evaluation appeared to be based, at least in part, on
[claimant's] self-reported symptoms and, thus, insofar as those reported symptoms were found
to be less than credible, [the treating physician's] report was rendered less credible"); Kirby,
500 F.3d at 709 (finding that ALJ was entitled to discount treating physician's statement as to
claimant's limitations because such conclusion was based primarily on claimant's subjective
complaints and not on objective medical evidence).
Consideration of the consistency factor also militates against granting Dr. Tippett's
opinion any weight. This factor provides that more weight is to given an opinion the more
consistent it is with the record as a whole. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). As
discussed above, see note 17, supra, the limitations are not supported by the objective medical
record, reports by Plaintiff to his treating physician, or by his activities.
Plaintiff also argues that the ALJ's failure to specify the weight he was giving Dr.
Tippett's opinion requires reversal and remand. Whatever error may have been committed by
the ALJ not labeling the weight he was giving to Dr. Tippett's opinion has "no bearing on the
outcome" given his discussion of the pertinent frailties of that opinion. See Hepp v. Astrue,
511 F.3d 798, 806 (8th Cir. 2008) (repeating earlier holdings that an unfortunate deficiency
in opinion-writing technique does not require reversal when the deficiency had no bearing on
outcome) (internal quotations omitted).
Plaintiff next challenges the ALJ's RFC findings. Specifically, the ALJ's failure to
incorporate into those findings the manual dexterity restrictions found by Dr. Tippett. As

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noted above, "[t]he RFC 'is a function-by-function assessment based upon all of the relevant
evidence of an individual's ability to do work-related activities,' despite his or her physical or
mental limitations." Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir. 2007) (quoting SSR
96-8p, 1996 WL 374184, at *3 (July 2, 1996)). "When determining a claimant's RFC, the ALJ
must consider all relevant evidence, including the claimant's own description of her or his
limitations, as well as medical records, and observations of treating physicians and others."
Roberson, 481 F.3d at 1023. See also SSR 96-8p, 1996 WL 374184 at *5 (listing factors to
be considered when assessing a claimant's RFC, including, among other things, medical
history, medical signs and laboratory findings, effects of treatment, medical source statements,
recorded observations, and "effects of symptoms . . . that are reasonably attributed to a
medically determinable impairment").
Plaintiff further argues that the ALJ's finding that Plaintiff had additional limitations,
e.g., an inability to use his nondominant left upper extremity for manipulation and overhead
reaching, that narrows the range of sedentary work he can perform mandates a finding of
disability. Both Plaintiff and the Commissioner cite Social Security Ruling 96-9p in support
of their opposite arguments. That Ruling provides:
1. An RFC for less than a full range of sedentary work reflects very serious
limitations resulting from an individual's medical impairment(s) and is expected
to be relatively rare.
2. However, a finding that an individual has the ability to do less than a full
range of sedentary work does not necessarily equate with a decision of
"disabled." If the performance of past relevant work is precluded by an RFC for
less than the full range of sedentary work, consideration must still be given to
whether there is other work in the national economy that the individual is able
to do, considering age, education, and work experience.
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SSR 96-9p, 1996 WL 374185, *1 (July 2, 1996). Thus, the Ruling does not require a finding
of disability if a claimant cannot perform the full range of sedentary work. Instead, it requires
that the ALJ consider whether there is other work in the national economy that a claimant with
the RFC for less than that range can perform. The VE described such work that Plaintiff could
perform. There is no error.
In his final argument, Plaintiff challenges the ALJ's assessment of his credibility. He
first notes that the ALJ failed to discuss the many efforts he has taken to obtain pain relief.
Such efforts may reflect positively on a claimant's credibility. Cf. Hepp, 511 F.3d at 807
(detracting from claimant's credibility was his use of moderate, over-the-counter medication
for pain); Howe v. Astrue, 499 F.3d 835, 841 (8th Cir. 2007) (detracting from claimant's
credibility was the lack of any prescription pain medication). For the reasons set forth below,
however, other considerations support the ALJ's assessment. These considerations are not
outweighed by the ALJ's failure to cite a potentially positive consideration. See Partee, 638
F.3d at 865 ("The ALJ is not required to discuss methodically each [credibility] consideration,
so long as he acknowledged and examined those considerations before discounting [a
claimant's] subjective complaints.") (internal quotations omitted) (second alteration in
original).
One such detracting consideration was the failure of any of Plaintiff's treating
physicians to place any functional limitations on him. See Teague v. Astrue, 638 F.3d 611,
615 (8th Cir. 2011) ("Given that none of Teague's doctors reported functional or work related
limitations due to [her allegedly disabling impairment], there was a basis to question Teague's

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credibility."); accord Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (affirming
adverse credibility determination based, in part, on lack of any functional restrictions placed
on claimant by her doctors). Indeed, his primary treating physician, Dr. Wells, reported that
Plaintiff was not disabled and not significantly limited in his daily activities.
Drs. Rabun, Mades, and Tippett each referred to Plaintiff as exaggerating his symptoms
and/or malingering. This behavior detracts from his credibility. See Jones, 619 F.3d at 973;
Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006). Moreover, Dr. Rabun noted the
discrepancy between Plaintiff's walk when he was being observed and when he was not and
between his complaints of depression and the lack of any symptoms of such; Dr. Mades
remarked that he cried on cue; and Dr. Tippett observed the difference in Plaintiff's grip
strength during the examination and when he was removing his braces. See also Jones v.
Callahan, 122 F.3d 1148, 1152 (8th Cir. 1997) (affirming ALJ's adverse credibility
determination based, in part, on report of treating physician that there was a discrepancy
between claimant's "'appearance in the examining room and those outside when he did not
know that he was observed'" (quoting report of claimant's treating physician).
Another detractor was his testimony that he continued to look for restaurant work after
his alleged disability onset date. See Lansford v. Barnhart, 76 Fed.Appx. 109, 110 (8th Cir.
2003) (per curiam); Mitchell v. Sullivan, 907 F.2d 843, 844 (8th Cir. 1990).
The ALJ also properly considered the lack of ongoing medical treatment sought by
Plaintiff and the periods when he was noncompliant with his medication. Casey v. Astrue,
503 F.3d 687, 693 (8th Cir. 2007) (failure to seek regular treatment is not consistent with

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complaints of disabling pain). Although Plaintiff testified that the reference in the emergency
room medical records to him not taking his medications was during a time when he did not
have Medicaid, he did not produce any evidence that he had attempted to obtain low cost
medical treatment, including medication, and was denied treatment and medication because
of his financial hardship. Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992). Nor
does the one reference to lack of Medicaid explain the several references in Dr. Wells' records
to Plaintiff misplacing and losing his medication.
Additionally, although "'[a]n ALJ may not discount a claimant's subjective complaints
solely because the objective medical evidence does not fully support them,'" Renstrom, 680
F.3d at 1066 (quoting Wiese, 552 F.3d at 733), the absence of objective medical evidence to
support a claimant's complaints is a proper consideration when assessing that claimant's
credibility, id. at 1065. Accord Buckner, 646 F.3d at 558; Mouser v. Astrue, 545 F.3d 634,
638 (8th Cir. 2008). As described above, see pages 10 to 30, supra, there is a clear lack of
supporting objective medical evidence in the instant case.
Another inconsistency exists between Plaintiff's subjective complaints and his daily
activities. "[A] claimant 'need not be totally bedridden in order to be unable to work' . . . ."
Wagner, 499 F.3d at 851 (quoting Roberson, 481 F.3d at 1025). See also Reed v. Barnhart,
399 F.3d 917, 923-24 (8th Cir. 2005) (noting that the Eighth Circuit "has repeatedly observed
that the ability to do activities such as light housework and visiting with friends provides little
or no support for the finding that a claimant can perform full-time competitive work").
Plaintiff, however, testified about such limitations as being unable to walk farther than one

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block, but has forgotten his cane when walking to the bus stop with his children. He testified
about an inability to remember and concentrate, but goes to the library once a week to check
out books on history and helps his children with their homework in the evenings. He does
volunteer work during the school day at his children's school two or three times a week.
"An ALJ may discount a claimant's subjective complaints if there are inconsistencies
in the record as a whole." Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008). The ALJ
discussed the inconsistencies he found that lessened Plaintiff's credibility. The ALJ having
supported his credibility assessment with good reasons, this Court defers to his judgment. See
Finch, 547 F.3d at 935.
Conclusion
Considering all the evidence in the record, including that which detracts from the ALJ's
conclusions, the Court finds that there is substantial evidence to support the ALJ's decision.
"If substantial evidence supports the ALJ's decision, [the Court] [should] not reverse the
decision merely because substantial evidence would have also supported a contrary outcome,
or because [the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959,
964 (8th Cir. 2010). Accordingly,

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IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and
that this case is DISMISSED.
An appropriate Order shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 25th day of March, 2013.

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