Vent v. Astrue
Filing
21
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed, and plaintiffs Complaint is dismissed with prejudice. Signed by Magistrate Judge Frederick R. Buckles on 8/28/13. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERRY D. VENT,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,1 Commissioner )
of Social Security,
)
)
Defendant.
)
Case No. 4:11CV1960 FRB
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Jerry D.
Vent’s
appeal
of
Administration.
an
adverse
decision
of
the
Social
Security
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
Plaintiff Jerry D. Vent applied for Disability Insurance
Benefits (“DIB”) pursuant to Title II, and Supplemental Security
Income (“SSI”) pursuant to Title XVI of the Social Security Act, 42
U.S.C. §§ 401, et seq. (also “Act”), alleging that he became
disabled on February 28, 2006.
Plaintiff’s applications were
denied, and he requested a hearing before an administrative law
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 -
judge (“ALJ”), which was held on January 26, 2011.
(Tr. 345-81).
On February 7, 2011, the ALJ issued an unfavorable decision.
10-21).
(Tr.
Plaintiff then sought review from defendant Agency’s
Appeals Council, which denied plaintiff’s request for review on
October 13, 2011.
(Tr. 5-9).
The ALJ’s decision thus stands as
the Commissioner’s final decision subject to review in this Court.
42 U.S.C. § 405(g).
II.
A.
Evidence Before The ALJ
Plaintiff’s Testimony
Plaintiff responded to questions posed by the ALJ. He
testified that he was 51 years old, five feet ten inches tall, 215
pounds, and right handed.
(Tr. 349).
His last educational level
was the tenth grade, and he did not earn a G.E.D. or receive
vocational or job training.
write.
(Id.)
(Tr. 352).
He is able to read and
He does not smoke or drink, never had a drinking
problem, and has no history of drug use.
(Tr. 359).
Plaintiff testified that he was married and lived in a
single-wide trailer with his wife and 11-year-old grandson.
349-50).
(Tr.
He testified that he had a driver’s license but not been
driving because his vehicle was not operable, and that his father
had
driven
him
to
the
administrative
hearing.
(Tr.
350).
Plaintiff testified that the family’s source of income was his
wife’s disability check and food stamps, and that he had medical
insurance through Medicaid.
(Tr. 350-51).
Plaintiff testified that he last worked in 2005 as a
handyman for Absolute Outsourcing, but only worked one day because
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the office was too far away.
(Tr. 352).
Plaintiff testified that
the majority of the work he had performed in the past 15 years was
as a maintenance man and handyman, work that required lifting 50 to
100 pounds.
(Tr. 353-54).
Plaintiff testified that he had not
sought or attempted to work since leaving his last job in 2005.
(Tr. 353-54).
He testified that his wife had thyroid cancer and
was sometimes hospitalized.
(Tr. 354). Plaintiff and the ALJ had
the following exchange:
Question (by the ALJ): Okay.
What happened?
Why did you stop working?
Answer (by plaintiff):
Well, my wife, she’s been in and
out of the hospital pretty much so I couldn’t
keep a steady job, you know, with her problems.
Q.
Okay. So you stopped so you could take care of
her?
A.
Yeah, and my grandson too.
Q.
that?
Do you have anyone else in the family to do
A.
No.
(Tr. 355).
Plaintiff testified that he rose in the morning at six.
(Id.)
When asked what he did in the morning, plaintiff replied “I
sit and watch TV mainly.”
(Id.)
He testified that he did not eat
breakfast, but that his wife sometimes cooked and his daughter
sometimes visited and cooked.
(Id.)
Plaintiff testified that he
did not do laundry, dishes, make his bed, change his sheets,
vacuum, mop, or sweep, and spent his days watching television,
napping, reading, and handing the family finances.
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(Tr. 356-57).
When the ALJ noted that plaintiff indicated in his Function Report
that
he
performed
several
other
daily
activities,
plaintiff
testified that his “health started getting pretty bad” since then.
(Tr. 357).
Plaintiff denied that he drove, went to the post
office, took out the trash, fished, played ball with his grandson,
or did yard work.
(Tr. 357-59).
He stated that he did not have
friends but did get along with his wife, family, and neighbors.
(Tr.
358).
He
stated
that
he
did
not
belong
to
clubs
or
organizations, and stopped going to church when his vehicle stopped
running.
(Tr. 358-59).
Plaintiff testified that, during the
summertime, he sometimes sat outside or went to a barbeque.
(Tr.
359).
Regarding self-care, plaintiff testified that he had
difficulty washing his back, and that his shoulder was going bad.
(Id.)
Plaintiff testified that he is diabetic and is treated
successfully with medication and injections, but has the following
difficulties: sweats, feeling like he is going to faint, sores on
his legs, vision problems, and numbness in his legs and arms while
sleeping that sometimes persisted after getting out of bed.
360-61).
He testified that he had hypertension.
(Tr.
(Tr. 361).
Plaintiff testified that he took various medications, including
Ibuprofen, Naproxen, Tylenol with hydrocodone, medicines for joint
pain, and a muscle relaxer.
(Tr. 362-63).
Plaintiff stated that
one of his medications caused him to feel light headed, but he did
not know which one.
(Tr. 363-64).
Plaintiff testified that, “back in the ‘80s” he had three
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slipped discs in his back, and had suffered from pain ever since.
(Tr. 364).
He testified that, when he first woke in the morning,
he could hardly walk, and had to “move around a little bit to get
[his] back adjusted.”
(Id.)
The ALJ asked plaintiff to quantify
the pain he normally experienced using a one-to-ten scale, with ten
representing
the
sometimes ten.”
worst
(Id.)
pain,
and
plaintiff
replied
“[a]lmost
Plaintiff had never undergone back surgery
and had not had radiological testing of his back since the 1980s,
but was scheduled for an orthopedic visit and a back x-ray the
following week.
(Tr. 364-65, 370).
When asked why he had waited
so long to have radiological testing, plaintiff replied that his
medical treatment providers were focusing more on diabetes than his
back pain.
(Tr. 365).
Plaintiff testified that he dislocated his left shoulder
two years ago in a fall from his roof.
(Id.)
He stated that he
did not see the x-rays that were performed and does not know what
his doctors said about his shoulder.
(Id.)
He testified that he
could not raise his left arm over his shoulder, and could not reach
out in front of his body without pain.
(Tr. 365-66).
He testified
that his shoulder hurt every day, and that he felt popping,
cracking and grinding.
(Tr. 365).
on a one-to-ten scale.
He quantified the pain as an 8
(Id.)
Plaintiff testified that sitting caused back problems.
(Tr. 368).
He stated that he could stand for 20 to 30 minutes,
walk one block, and lift ten pounds.
(Id.)
Bending, stooping,
crouching, kneeling and crawling caused back pain, and he had
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trouble traveling stairs unless he used a cane.
(Tr. 368-69).
Plaintiff testified that he had lumps on his head and
back, but that they had never been checked and he did not know what
they
were.
deteriorating.
(Tr.
366).
(Id.)
He
He
stated
testified
that
that
his
he
vision
suffered
was
from
depression, anxiety, and occasional moodiness, and that he cried
often and had felt suicidal, but had made no attempts on his life.
(Tr. 366-67).
He had never seen a mental health professional but
had thought about doing so.
(Tr. 367).
Plaintiff testified that
he had occasional problems with concentration.
Plaintiff
also
responded
to
(Tr. 367-68).
questions
posed
by
his
attorney. He testified that he suffered from intermittent but daily
numbness in his legs that was worse on the left side.
(Tr. 370).
Plaintiff also stated “[e]very night when I go to sleep my legs go
numb.”
(Id.)
Plaintiff and his attorney then had the following
exchange:
Question (by counsel):
Is it just when you go to sleep
or can it be when you’re sitting up and walking
around?
Answer (by plaintiff):
When I’m sitting up.
when I go to sleep at night my hands and my leg
numb.
Mainly
goes
Q.
Okay.
All right.
So if you’re sitting up
during the day it does not go numb, is that
what
you’re saying?
A.
It goes numb too - -
Q.
Okay.
- 6 -
A.
night.
- - but not as much as when I’m sleeping at
(Tr. 371).
Plaintiff testified that the numbness kept him awake and
that he tossed and turned all night.
(Id.)
He testified that
numbness also caused problems with sitting, and that he had to get
up and walk for five to ten minutes “[o]nce an hour at least.
Every 30 minutes.
I mean, I have to constantly move to get, you
know, the feeling back.”
(Tr. 371-72).
Plaintiff testified that
he experienced numbness if he stood for longer than 30 minutes, and
needed a cane to balance when walking.
(Tr. 372-73).
He testified
that he would be able to type for five minutes, and that he had
trouble with grasping and holding things like cups and plates.
(Tr. 374).
He stated that he had trouble picking up small items
such as coins due to numbness in his fingers.
(Id.)
He testified
that he tried to nap for 30 minutes each day in an attempt to
alleviate pain.
(Tr. 376).
The ALJ then heard testimony from a Vocational Expert
(“VE”).
After classifying plaintiff’s past work and considering
hypothetical questions posed by the ALJ, the VE testified regarding
various jobs the hypothetical individual could perform, including
host, furniture rental consultant, and usher.
B.
Medical Records
On January 17, 2008, plaintiff saw Barry Burchett, M.D.,
for an internal medicine examination at the request of Missouri
Disability Determination.
(Tr. 233).
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Dr. Burchett noted that
plaintiff was “claiming disability stating ‘mainly my back.’” (Id.)
Plaintiff stated that he had done a lot of heavy lifting when he
was younger and began having trouble with his back, and saw a
physician who performed x-rays.
(Id.)
Plaintiff stated that, for
the past ten years, he had experienced constant pain in his back
near the midline at approximately L5 to S1.
Plaintiff did
(Id.)
not describe radicular pain or associated numbness or tingling in
the lower extremities.
(Tr. 233).
Upon examination, Dr. Burchett
noted that plaintiff ambulated with a normal gait, did not require
the use of an assistive device, and appeared stable and comfortable
in the supine and sitting positions.
(Tr. 234).
Plaintiff’s
appearance, mood, orientation and thinking were appropriate, and
his recent and remote memory was good.
(Id.)
Examination of
plaintiff’s shoulders, elbows, wrists, hands, and legs was normal.
(Tr. 235). Regarding plaintiff’s hands, Dr. Burchett observed that
plaintiff was able to pick up coins without difficulty.
(Id.)
Examination of plaintiff’s back revealed no spasm or tenderness.
(Id.)
Straight leg raise testing was positive at 70 degrees on the
left and 90 degrees on the right.
heel and toe walk.
(Tr. 236).
(Id.)
Plaintiff was able to
He could perform a full squat, but
experienced pain when doing so.
(Id.)
Deep tendon reflexes were
symmetrical, and there were no motor or sensory abnormalities in
the lower extremities.
(Id.)
Dr. Burchett’s impression was
chronic low back pain probable degenerative disc disease without
radiculopathy, and untreated hypertension.
(Id.)
Dr. Burchett
noted that plaintiff had a long history of low back pain without
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treatment.
(Tr. 236).
On February 20, 2008, Marsha Toll, Psy.D., completed a
Psychiatric Review Technique form.
(Tr. 239).
Dr. Toll opined
that plaintiff had no medically determinable impairment.
(Id.)
Dr. Toll observed that plaintiff had no history of treatment and
took
no
psychiatric
medication,
and
that,
during
physical
examination, plaintiff was noted to have a normal appearance, mood,
orientation, and thinking, and good recent and remote memory. (Tr.
249).
Records
from
Parkland
Health
Center
indicate
that
plaintiff was seen on September 8, 2009 by Akeeb Adedokun, M.D.
(Tr. 250-60).
Plaintiff reported that he fell from a roof three
weeks ago and caught himself on beams, and had since experienced
constant
bilateral
“clicking” sound.
normal
left
shoulder.
shoulder
pain
(Tr. 252).
shoulder,
(Tr. 259).
and
accompanied
by
an
audible
Shoulder radiography revealed a
degenerative
disease
of
the
right
Plaintiff was diagnosed with hypertension
and shoulder sprain, and given prescriptions for Tylenol #3,2
Flexeril,3 and Metoprolol,4 and advised to follow up with his doctor
for hypertension.
(Tr. 251, 258).
2
Tylenol 3 is used to relieve mild to moderate pain.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681004.html
3
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
4
Metoprolol is used to treat hypertension.
http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/
a682864.html
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Records
from
Fernando
DeCastro,
M.D.,
indicate
that
plaintiff was seen on November 5, 2009 for a medical evaluation to
determine eligibility for Missouri state aid.
(Tr. 262-66).
It
was noted that plaintiff was taking Metoprolol, but no other
medications were noted.
(Tr. 262).
Although Dr. DeCastro’s
“History and Physical” form contained a space for him to record his
findings upon examination, Dr. DeCastro left this space blank.
(Tr. 262).
In a later page of the report, Dr. DeCastro checked
boxes indicating that plaintiff had no edema, skin discoloration,
or shortness of breath.
(Tr. 265).
Dr. DeCastro diagnosed
plaintiff with hypertension, rotator cuff injury, anxiety and
depression, and checked a box indicating that plaintiff would be
disabled/incapacitated for three to five months.
(Tr. 266).
Records from Medex indicate that plaintiff was examined
by Stanley London, M.D., on February 4, 2010.
(Tr. 267-71).
Dr.
London noted that plaintiff’s chief complaints related primarily to
his left shoulder, but also to his neck.
(Tr. 267).
Dr. London
noted that there was no real radicular pain in plaintiff’s left
arm, but that plaintiff complained of numbness and tingling. (Id.)
Plaintiff reported that, when he initially sought treatment after
the fall, the doctors did not do much for him, and were more
concerned about his blood pressure. (Id.) Plaintiff described his
pain as sharp and aching in his neck and shoulder, stated that he
took Tylenol for relief, and denied that he had radicular pain from
his neck.
(Id.)
Plaintiff reported that any activity exacerbated
his pain, and that he could not walk far, or stand or sit for long.
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(Tr. 267).
Upon examination, plaintiff had markedly restricted
range of motion of his left shoulder and neck. (Tr. 268).
Dr.
London wrote that plaintiff “keeps telling me there is numbness in
his left arm and left fingers, but when I ask him to compare the
two
sides,
he
says
they
are
equal.”
(Id.)
Sensation
in
plaintiff’s fingers was equal, straight leg raise testing was
normal, and his reflexes were normal.
(Id.)
X-ray of the
cervical spine revealed degenerative joint disease, and disc space
narrowing at C5-C7.
(Tr. 269).
Dr. London opined that plaintiff
had a rotator cuff tear of his left shoulder, degenerative joint
disease, and possible degenerative disc disease of his neck.
(Tr.
268).
On March 29, 2010, James Spence, Ph.D., completed a
Psychiatric Review Technique form.
(Tr. 272-82).
Dr. Spence
opined that plaintiff had no medically determinable impairment.
(Id.)
or
Dr. Spence noted that plaintiff received no ongoing medical
psychological
treatment,
there
was
no
evidence
of
prior
inpatient or outpatient psychiatric treatment, and plaintiff took
no psychiatric medication.
(Tr. 282).
Dr. Spence also noted that,
when plaintiff was seen by Dr. London for an examination to
determine eligibility for state aid, he reported no psychiatric
complaints.
(Id.)
On April 8, 2010, Christy Huff completed a Physical
Residual Functional Capacity Assessment form.
(Tr. 283-89).
Ms.
Huff reviewed plaintiff’s medical records and noted that there was
no evidence to support a medically determinable impairment other
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than a left shoulder sprain.
(Tr. 285).
Ms. Huff opined that
plaintiff could occasionally lift 50 pounds and frequently lift 25,
stand, walk and/or sit for six hours in an eight-hour work day, and
push and/or pull without limitation.
(Tr. 284).
plaintiff
should
climb
scaffold,
but
maneuvers.
only
could
(Tr. 285).
occasionally
frequently
perform
a
She opined that
ladder,
all
other
rope
or
postural
Ms. Huff opined that plaintiff was limited
in his ability to reach in all directions, but had no other
manipulative limitations.
(Tr. 286).
On August 16, 2010, plaintiff was seen at Bonne Terre
Medical Associates, stating that he was there for a check up and
medication refills.
(Tr. 296).
He also stated that he was
depressed, and that he was having pain in the middle of his back.
(Id.)
Plaintiff’s past medical history was noted as blurred
vision, elevated blood pressure, heartburn and indigestion.
(Id.)
It is noted that plaintiff had not been taking his medications and
that he had financial problems, car problems, and stress.
(Id.)
Upon examination, plaintiff’s neck was normal and supple.
(Tr.
296).
His affect and mood were appropriate.
diagnosed
with
hypertension
and
diabetes.
(Id.)
(Id.)
He was
Plaintiff
returned on August 20, 2010 for follow-up and lab results; it does
not appear that examination was performed.
(Tr. 297).
On October 22, 2010, plaintiff returned to Bonne Terre
Medical Associates with complaints of swelling in his left knee
since the previous weekend, stating that he had no injury he “just
walked a lot.”
(Tr. 298).
Plaintiff also complained of right
- 12 -
thumb pain and a toothache.
(Id.)
Examination, including neck,
neurological, and musculoskeletal system examination, was normal.
(Id.)
The assessment was diabetes, right hand pain, and left knee
pain, and x-rays were ordered.
(Id.)
October 24, 2010, x-ray of
plaintiff’s left knee revealed no evidence of abnormality.
301).
(Tr.
Right hand x-ray performed on that same date revealed a
deformity of the fifth metacarpal that appeared to be an old,
healed fracture, but no other abnormal findings.
III.
(Tr. 302).
The ALJ’s Decision
The ALJ determined that plaintiff had “degenerative joint
disease at C5-C6 and C6-C7; status-post left shoulder sprain;
hypertension; diabetes mellitus and hyperlipidemia controlled by
medication; and complaints of back pain, peripheral neuropathy,
vision loss, and depression without real medical foundation.” (Tr.
20).
or
The ALJ determined that plaintiff did not have an impairment
combination
of
impairments
that
met
or
equaled
a
listed
impairment. (Id.) The ALJ determined that plaintiff was unable to
perform
his
past
relevant
work,
but
retained
the
residual
functional capacity (“RFC”) to perform the full range of at least
light work except for “lifting or carrying more than 10 pounds
frequently or more than 20 pounds occasionally; climbing of ropes,
ladders
or
scaffolds,
kneeling
or
crawling;
doing
more
than
occasional climbing of ramps and stairs or more than occasional
balancing, stooping, or crouching; using the nondominant left upper
extremity for no more than occasional reaching in all directions;
or
having
concentrated
or
excessive
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exposure
to
unprotected
heights.”
(Id.)
The ALJ noted that, when the vocational expert
was asked to assume such capabilities and limitations, he testified
that such a person could perform any of a total of 8,000 light jobs
in
the
state
of
Missouri
and
377,000
furniture rental agent, and usher.
nationwide
(Tr. 17).
as
a
host,
Using the medical-
vocational guidelines as a framework, and the vocational expert’s
opinions, the ALJ determined that plaintiff was not disabled. (Tr.
19).
The ALJ noted that the vocational expert’s opinions provide
specific jobs in significant numbers that were consistent with
plaintiff’s medically-established capabilities and limitations.
(Id.)
IV.
Discussion
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act
(also
“Act”),
plaintiff
must
prove
that
he
is
disabled.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker
v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir.
1992).
The
Social
Security
Act
defines
disability
as
the
“inability 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 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual
will
be
declared
disabled
“only
if
his
physical
or
mental
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
- 14 -
education,
and
work
experience,
engage
in
any
other
kind
of
substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To
determine
whether
a
claimant
is
disabled,
Commissioner engages in a five-step evaluation process.
the
See 20
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
decides
whether
the
claimant
has
a
If the claimant is
Next, the Commissioner
“severe”
impairment
or
combination of impairments, meaning that which significantly limits
his ability to do basic work activities.
impairment(s)
is
not
severe,
then
he
is
If the claimant’s
not
disabled.
The
Commissioner then determines whether the claimant’s impairment(s)
meet or equal any listed in 20 C.F.R., Subpart P, Appendix 1.
If
claimant’s impairment(s) is equivalent to a listed impairment, he
is conclusively disabled.
At the fourth step, the Commissioner
establishes whether the claimant can perform his past relevant
work.
If
so,
the
claimant
is
not
disabled.
Finally,
the
Commissioner evaluates various factors to determine whether the
claimant is capable of performing any other work in the economy.
If not, the claimant is declared disabled and becomes entitled to
disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.
42
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
- 15 -
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial
evidence is less than a preponderance but enough that a reasonable
person would find adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
Johnson v.
The “substantial
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
Coleman v.
Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).
The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision.
Coleman,
498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
1999).
If
substantial
evidence
exists
to
support
the
administrative decision, this Court must affirm that decision even
if the record also supports an opposite decision.
Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003); see also Pearsall, 274
F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000) (In the event that two inconsistent conclusions may be drawn
from
the
evidence,
the
Commissioner’s
findings
may
still
be
supported by substantial evidence on the record as a whole).
In the case at bar, plaintiff claims 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
RFC
determination is legally insufficient, that the ALJ improperly
considered certain evidence in assessing credibility, and, because
- 16 -
the hypothetical question posed to the VE was based upon a flawed
RFC, it was insufficient.
Plaintiff also contends that the ALJ
failed to properly consider certain medical evidence. In response,
the Commissioner contends that substantial evidence supports the
ALJ’s decision.
A.
Credibility Determination
The ALJ discredited plaintiff’s allegations of symptoms
precluding all work. Plaintiff alleges error, arguing that the ALJ
improperly considered his work history and the absence of medical
evidence to support his complaints. Review of the decision reveals
no error.
Before
determining
a
claimant’s
residual
functional
capacity, the ALJ must evaluate the credibility of his subjective
complaints.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007)
(citing Pearsall, 274 F.3d at 1217).
Testimony regarding pain is
necessarily subjective in nature, as it is the claimant’s own
perception of the effects of his alleged physical impairment.
Halpin v. Shalala, 999 F.2d 342, 346 (8th Cir. 1993).
Because of
the subjective nature of physical symptoms, and the absence of any
reliable technique for their measurement, it is difficult to prove,
disprove
or
quantify
their
existence
and/or
overall
effect.
Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984).
Polaski,
the
Eighth
Circuit
addressed
this
difficulty
In
and
established the following standard for the evaluation of subjective
complaints:
The
absence
of
an
objective
- 17 -
medical
basis
which supports the degree of severity of
subjective complaints alleged is just one
factor to be considered in evaluating the
credibility of the testimony and complaints.
The adjudicator must give full consideration
to all of the evidence presented relating to
subjective
complaints,
including
the
claimant’s prior work record, and observations
by third parties and treating and examining
physicians relating to such matters as: (1)
the claimant’s daily activities; (2) the
duration, frequency and intensity of the pain;
(3) precipitating and aggravating factors; (4)
dosage, effectiveness and side effects of
medication; (5) functional restrictions.
Id. at 1322.
Although the ALJ is not free to accept or reject the
claimant’s subjective complaints based upon personal observations
alone, he may discount such complaints if there are inconsistencies
in the evidence as a whole.
Id.
The “crucial question” is not
whether the claimant experiences symptoms, but whether his credible
subjective complaints prevent him from working. Gregg v. Barnhart,
354 F.3d 710, 713-14 (8th Cir. 2003).
considers
the
Polaski
factors
and
When an ALJ explicitly
discredits
a
claimant’s
complaints for a good reason, that decision should be upheld.
Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
The credibility
of a claimant’s subjective testimony is primarily for the ALJ, not
the courts, to decide, and the court considers with deference the
ALJ’s decision on the subject.
Tellez v. Barnhart, 403 F.3d 953,
957 (8th Cir. 2005).
In his written decision, the ALJ acknowledged his duty to
consider the issue of plaintiff’s credibility using the foregoing
- 18 -
Polaski
factors,
listed
the
factors,
and
cited
20
C.F.R.
§§
404.1529 and 416.929, the Regulations corresponding with Polaski
and credibility determination.
The ALJ wrote that plaintiff “had
a scattered and somewhat erratic work record, with fair earnings in
some years but little or no earnings in others.”
finding is supported by the record.
(Tr. 15).
This
Review of plaintiff’s work
record shows that his first year of recorded earnings was 1977,
when he earned $111.25.
(Tr. 144).
He worked sporadically after
that, with markedly low earnings in 1981 and 1984 and no earnings
in 1978, 1979, 1980, 1982, 1983, and 1985.
(Id.)
Plaintiff had
recorded earnings for each year from 1986 through 2000, but those
earnings fluctuated dramatically; for example, he earned $7,735.07
in 1987 but $641.20 in 1989 and $207.00 in 1990.
(Id.)
He earned
$9,987.50 in 1999, but earned nearly half that amount the following
year, nothing in 2001, and $77.50 in 2002.
(Id.)
This is not a
case in which the earnings record reflects that the claimant worked
consistently but held low-paying jobs.
This is a case in which the
claimant’s earnings record suggests low motivation to work.
The
ALJ’s characterization of plaintiff’s work history was accurate,
and it was proper for him to consider plaintiff’s work history as
See Comstock v.
one factor detracting from his credibility.
Chater,
91
F.3d
1143,
1147
(8th
Cir.
1996)
(a
work
record
characterized by low earnings and significant breaks in employment
detracts from a claimant’s credibility); see also Hutton v. Apfel,
175 F.3d 651, 655 (8th Cir. 1999) (citing Woolf v. Shalala, 3 F.3d
1210,
1214
(8th
Cir.
1993)
(a
poor
- 19 -
work
history
lessens
a
claimant’s credibility).
The
ALJ
did
not
consider
plaintiff’s
dispositive of the issue of his credibility.
work
history
Instead, the ALJ
wrote: “the work record is only one factor to be considered when
assessing credibility.” (Tr. 15).
assessment
of
plaintiff’s
The ALJ then continued his
credibility,
noting
several
inconsistencies in the record that detracted therefrom, including
the lack of correlation between plaintiff’s testimony and the
medical
evidence
erroneously
of
record.
considered
the
Plaintiff
medical
states
evidence
that
in
the
ALJ
assessing
credibility, and merely recited the evidence and concluded that
some signs were normal.
(Docket No. 16 at 12).
This does not
accurately reflect the ALJ’s decision. The ALJ’s decision contains
a comprehensive and thoughtful analysis of the medical evidence of
record.
In addition, plaintiff appears to ignore the fact that the
ALJ was required to consider the extent to which plaintiff’s
subjective allegations could reasonably be accepted as consistent
with the objective medical evidence.
20 C.F.R.
§§ 404.1529,
416.929.
The ALJ observed that, while plaintiff had been diagnosed
with diabetes mellitus and prescribed medication for it, there was
no finding of retinopathy, and no objective testing indicated
neuropathy.
The ALJ noted that, despite radiological findings of
degenerative joint disease in the cervical spine at C5-C6 and C6C7, plaintiff did not testify that he suffered from neck pain.
The
ALJ noted that, despite plaintiff’s allegations of debilitating
- 20 -
hand symptoms, examination revealed normal bilateral grip strength
and digital dexterity for gross and fine movements except for 3/5
strength of the left hand.
The ALJ further noted that a knee x-ray
in October of 2010 was negative, and an x-ray of plaintiff’s right
hand showed only a possible old, healed fracture.
The ALJ noted
that plaintiff had been diagnosed with a shoulder sprain.
following
a
radiographs
fall
which
from
a
revealed
roof,
plaintiff
normal
underwent
findings
on
the
Indeed,
shoulder
left
and
degenerative disease on the right, and plaintiff was diagnosed with
shoulder sprain. The ALJ’s determination that the medical evidence
failed to support plaintiff’s allegations was proper.
While the
lack of objective medical evidence is not dispositive, it is an
important factor, and the ALJ is entitled to consider the fact that
there is no objective medical evidence to support the degree of
alleged limitations.
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2);
Kisling v. Chater, 105 F.3d 1255, 1257-58 (8th Cir. 1997); Cruse v.
Bowen, 867 F.2d 1183, 1186 (8th Cir. 1989) (the lack of objective
medical evidence to support the degree of severity of alleged pain
is a factor to be considered).
In further assessment of plaintiff’s credibility, the ALJ
noted
that
plaintiff
received
only
sporadic
and
conservative
treatment, despite the fact that he was covered by Medicaid.
finding is supported by the record.
This
While plaintiff alleged that
his condition was disabling beginning in February of 2006, there
are no medical records indicating treatment at that time.
earliest
medical
evidence,
dated
- 21 -
in
2008,
is
a
The
consultative
examination performed for the purpose of determining disability.
Plaintiff did not seek medical treatment until September of 2009,
following a fall from a roof.
He then went from September 2009 to
August 2010 without any medical care.
From then until November of
2010, he was seen in an outpatient clinic with complaints that were
not consistent with those he described during the administrative
hearing.
His last medical care of record was dated three months
before the administrative hearing.
surgery
for
specialist.
any
condition,
or
He was never advised to have
even
to
seek
evaluation
by
a
Claims of disabling pain may be discredited when the
record reflects minimal or conservative medical treatment. Barrett
v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994) (minimal treatment
of back pain and migraine headaches was inconsistent with claims of
disabling pain); Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir.
2004) (citing Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987)
(“Infrequent treatment is also a basis for discounting a claimant’s
subjective complaints”).
regarding
debilitating
In addition, while plaintiff testified
shoulder,
hand,
and
leg
symptoms
that
drastically reduced his ability to walk, sit, grasp, and so forth,
he did not characterize his condition in this manner when seeking
medical treatment in October 2010.
See Stephens v. Shalala, 46
F.3d 37, 38 (8th Cir. 1995) (per curiam) (discrediting later
allegations of back pain when no complaints made about such pain
while receiving other treatment).
Further evidence supporting the ALJ’s adverse credibility
determination is that, when plaintiff was asked why he stopped
- 22 -
working, he replied that he did so to take care of his wife and
grandson, explaining that his wife had been in and out of the
hospital and he could not keep a steady job with her problems.
(Tr.
355).
At
another
point
in
the
administrative
hearing,
plaintiff testified that he last worked in 2005 as a handyman but
worked only one day because the office was too far away.
352).
(Tr.
Cessation of work for reasons unrelated to a medical
condition militate against a finding of disability.
See Kelley,
372 F.3d at 961 (citing Browning v. Sullivan, 958 F.2d 817, 823
(8th Cir. 1992)).
Plaintiff also gave inconsistent testimony regarding
sitting.
During the administrative hearing, plaintiff testified
that he rose in the morning at six o’clock and, when asked what he
did during the morning, plaintiff replied “I sit and watch TV
mainly.”
(Tr. 355).
In a Function Report dated February 19, 2010,
in response to the question “[d]escribe what you do from the time
you wake up until going to bed” plaintiff wrote “sit and watch TV
or read.”
(Tr. 206).
However, plaintiff also testified that he
had significant problems sitting, and had to move constantly. (Tr.
368, 371-72).
While not dispositive, plaintiff’s inconsistent
statements detract from his credibility. See Ply v. Massanari, 251
F.3d 777, 779 (8th Cir. 2001).
A review of the ALJ’s credibility determination shows
that, in a manner consistent with and required by Polaski, he
considered plaintiff’s subjective complaints on the basis of the
entire record before him, and set forth numerous inconsistencies
- 23 -
detracting from plaintiff’s credibility.
An ALJ may disbelieve
subjective complaints where there are inconsistencies on the record
as a whole.
the
Polaski
Battles, 902 F.2d at 660.
factors
and
gave
Because the ALJ considered
multiple
valid
reasons
for
discrediting plaintiff’s subjective complaints, this Court is bound
by his adverse credibility determination.
B.
Hogan, 239 F.3d at 962.
RFC Assessment
Plaintiff next challenges the ALJ’s RFC determination,
arguing that it is unsupported by some medical evidence, that the
ALJ improperly weighed Dr. DeCastro’s opinion, and failed to point
to medical evidence that plaintiff could stand for six out of eight
hours daily despite a finding of peripheral neuropathy. Review of
the ALJ’s decision reveals no error.
Residual functional capacity is defined as that which a
person remains able to do despite his limitations.
20 C.F.R. §§
404.1545, 416.945, Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir.
2001).
relevant,
The ALJ must assess a claimant’s RFC based upon all
credible
evidence
in
the
record,
including
medical
records, the observations of treating physicians and others, and
the claimant’s own description of his 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,
- 24 -
245 F.3d at 703-04; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000).
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.
While
an
that
an
ALJ’s
RFC
determination
must
be
supported by some medical evidence, “the burden of persuasion to
prove disability and demonstrate RFC remains on the claimant.”
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
cannot meet this burden on his statements alone.
Plaintiff
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, 416.929.
As discussed above, the medical signs and laboratory
findings from the minimal treatment plaintiff did receive mainly
document normal examination findings.
In addition, the ALJ noted
that examination consistently failed to reveal most of the signs
associated with musculoskeletal pain of the chronic and severe
nature that plaintiff described caused his debilitating functional
limitations. There was no muscle atrophy, persistent or frequently
occurring
muscle
spasm,
obvious
or
consistently
reproducible
neurological deficits such as motor, sensory or reflex loss or
other signs of impingement, or persistent inflammatory signs.
- 25 -
The
ALJ noted that the medical evidence established no inability to
ambulate effectively or perform fine or gross movements.
Noting
that
the
ALJ
determined
that
plaintiff
had
peripheral neuropathy, plaintiff complains that the ALJ pointed to
no evidence establishing that someone with peripheral neuropathy
could stand for six out of eight hours.
required
to
point
to
evidence
and
However, the ALJ was not
affirmatively
prove
this.
Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at
863 (an ALJ is not required to produce evidence and affirmatively
prove that a claimant can lift a certain weight or walk a certain
distance). The mere fact of the ALJ’s determination that plaintiff
had peripheral neuropathy is insufficient to establish disability,
absent evidence to establish functional loss resulting from that
diagnosis.
Trenary, 898 F.2d at 1364.
plaintiff’s
testimony,
there
is
no
With the exception of
such
evidence
here.
A
claimant’s statements alone will not establish disability.
20
C.F.R. §§ 404.1529, 416.929.
Plaintiff also contends that the ALJ improperly weighed
the opinion of Dr. DeCastro, who plaintiff characterizes as a
treating
physician.
First,
calling
Dr.
DeCastro
physician totally mischaracterizes his role.
a
treating
Dr. DeCastro saw
plaintiff on one occasion for the sole purpose of evaluating him to
determine his eligibility for public aid in the state of Missouri.
As
a
consulting
physician,
Dr.
constitute substantial evidence.
DeCastro’s
opinion
does
not
Charles v. Barnhart, 375 F.3d
777, 783 (8th Cir. 2004) (generally when consulting physician
- 26 -
examines
claimant
evidence).
only
once,
his
opinion
is
not
substantial
Second, Dr. DeCastro’s opinion is not helpful to
plaintiff in the social security context.
As the ALJ noted, Dr.
DeCastro opined that plaintiff’s impairments would last for three
to four months, which is insufficient to meet the Commissioner’s
definition
of
disability.
42
U.S.C.
§§
423(d)(1)(A),
1382c(a)(3)(A) (defining disability as the “inability 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 12 months.”)
Third, the ALJ
correctly observed that he was not bound by Dr. DeCastro’s opinion
that plaintiff met the requirements for disability in Missouri. 20
C.F.R.
§§
404.1504,
416.904
(decisions
by
other
governmental
agencies are made based on their rules and are not binding upon the
Commissioner, which must make a disability determination based upon
social security law; therefore, determinations of other agencies
that a claimant is disabled are not binding upon the Commissioner).
Plaintiff also complains that, in a footnote, the ALJ
included
his
determinations
unsupported
process
was
opinion
that
lenient.
Missouri’s
However,
the
disability
ALJ
fully
explained this statement by noting that such opinions are typically
rendered on the basis
of subjective allegations, without the
benefit of a comprehensive medical examination or updated medical
records.
report.
This is an accurate characterization of Dr. DeCastro’s
As noted in the above summary of the medical information,
- 27 -
while Dr. DeCastro’s “History and Physical” form contains a space
to
record
musculoskeletal
and
neurological
examination, Dr. DeCastro left the space blank.
findings
upon
(Tr. 262).
While
Dr. DeCastro later noted that plaintiff had no shortness of breath,
skin discoloration, or swelling, (Tr. 265), he did not indicate
what
testing
supported
his
opinion.
There
is
no
merit
to
plaintiff’s suggestion that the ALJ erred in his treatment of Dr.
DeCastro’s opinion.
Plaintiff also appears to suggest that the ALJ did not
properly explain his rationale for the weight given Dr. London’s
opinion.
In his decision, however, the ALJ fully discussed Dr.
London’s examination findings, and wrote that he considered Dr.
London’s diagnosis of a rotator cuff tear of the left shoulder
“purely speculative.”
(Tr. 18).
This is supported by the record.
As the ALJ noted, there is no such diagnosis from any other medical
provider
who
examined
plaintiff
before
performed his consultative evaluation.
or
after
Dr.
London
In fact, radiography of
plaintiff’s left shoulder, performed in September of 2009 after
plaintiff’s fall from a roof, revealed normal findings, and there
is nothing to indicate that plaintiff had an intervening accident
or exacerbation.
In addition, Dr. London did not perform any
radiological or other objective diagnostic testing to confirm a
diagnosis of a torn rotator cuff, nor did he indicate in his report
that such diagnosis was based on any particular medical findings.
See Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995)
(affirming ALJ’s assessment of treating physician’s opinion as
- 28 -
unsupported by objective medical tests or diagnostic data and not
conclusive in disability determination; the weight given to even a
treating physician’s opinion is limited if it is only a conclusory
statement); see also Plummer v. Apfel, 186 F.3d 422, 430 (3rd Cir.
1999) (citing Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991)
(an unsupported diagnosis is not entitled to significant weight)).
Absent
evidence
establishing
functional
loss,
a
diagnosis
is
insufficient to prove disability. Trenary v. Bowen, 898 F.2d 1361,
1364 (8th Cir. 1990).
The ALJ also noted the absence of other
objective findings in Dr. London’s report, including normal grip
strength and digital dexterity.
The ALJ’s decision contains an
exhaustive discussion of all of the medical information of record,
and the ALJ fully explained his reasons for the weight given to the
opinion evidence of record.
While
plaintiff
is
correct
that
an ALJ’s RFC
determination must be supported by some medical evidence, “the
burden of persuasion to prove disability and
remains on the claimant.”
demonstrate RFC
Vossen, 612 F.3d at 1016.
Plaintiff
herein cannot demonstrate that his 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 herein cannot demonstrate that his functional
limitations are greater than those described in the ALJ’s RFC
assessment.
The ALJ’s RFC determination is also supported by his
- 29 -
legally
sufficient
determination
that
plaintiff’s
subjective
allegations were less than fully credible.
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.
C.
Vocational Expert Testimony
Plaintiff next contends that the ALJ erred in relying
upon the vocational expert’s testimony because it did not account
for all of his limitations.
The undersigned disagrees.
“A hypothetical question posed to the vocational expert
is sufficient if it sets forth impairments supported by substantial
evidence in the record and accepted as true by the ALJ.”
Hunt v.
Massanari, 250 F.3d 622, 625 (8th Cir. 2001) (citing Prosch v.
Apfel, 201 F.3d 1010, 1015 (8th Cir. 2000)).
An ALJ may omit
alleged impairments from a hypothetical question when there is no
medical evidence that such impairments impose any restrictions on
the claimant’s functional capabilities. Haynes v. Shalala, 26 F.3d
812, 815 (8th Cir. 1994).
As explained, supra, substantial evidence supports the
ALJ’s
RFC
and
credibility
determinations,
the
ALJ
considered and weighed all of the evidence of record.
properly
Likewise,
the hypothetical questions he posed to the VE included all the
impairments he found to be credible.
- 30 -
See Strongson v. Barnhart,
361 F.3d 1066, 1072-73 (8th Cir. 2004)(VE’s testimony constituted
substantial evidence when ALJ based his hypothetical upon a legally
sufficient RFC and credibility determination.)
It was permissible
for the ALJ to exclude “any alleged impairments that [he] has
properly rejected as untrue or unsubstantiated,” including less
than occasional reaching.
Hunt, 250 F.3d at 625 (citing Long v.
Chater, 108 F.3d 185, 187 (8th Cir. 1997)).
For
determines
all
that
of
the
the
foregoing
Commissioner’s
reasons,
decision
the
is
undersigned
supported
by
substantial evidence on the record as a whole, and should therefore
be affirmed.
Because there is substantial evidence to support the
decision, reversal is not required merely because substantial
evidence may support a different outcome, or because another court
could have decided the case differently. Gowell v. Apfel, 242 F.3d
793, 796 (8th Cir.2001); Browning, 958 F.2d at 821.
Accordingly,
IT
IS
HEREBY
ORDERED
that
the
decision
of
the
Commissioner is affirmed, and plaintiff’s Complaint is dismissed
with prejudice.
_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of August, 2013.
- 31 -
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