Vent v. Astrue
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
JERRY D. VENT,
CAROLYN W. COLVIN,1 Commissioner )
of Social Security,
Case No. 4:11CV1960 FRB
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Jerry D.
All matters are pending before the undersigned
United States Magistrate Judge, with
consent of the parties,
pursuant to 28 U.S.C. § 636(c).
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
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).
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judge (“ALJ”), which was held on January 26, 2011.
On February 7, 2011, the ALJ issued an unfavorable decision.
Plaintiff then sought review from defendant Agency’s
Appeals Council, which denied plaintiff’s request for review on
October 13, 2011.
The ALJ’s decision thus stands as
the Commissioner’s final decision subject to review in this Court.
42 U.S.C. § 405(g).
Evidence Before The ALJ
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.
His last educational level
was the tenth grade, and he did not earn a G.E.D. or receive
vocational or job training.
He is able to read and
He does not smoke or drink, never had a drinking
problem, and has no history of drug use.
Plaintiff testified that he was married and lived in a
single-wide trailer with his wife and 11-year-old grandson.
He testified that he had a driver’s license but not been
driving because his vehicle was not operable, and that his father
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.
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.
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
Plaintiff testified that he had not
sought or attempted to work since leaving his last job in 2005.
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.
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.
Okay. So you stopped so you could take care of
Yeah, and my grandson too.
Do you have anyone else in the family to do
Plaintiff testified that he rose in the morning at six.
When asked what he did in the morning, plaintiff replied “I
sit and watch TV mainly.”
He testified that he did not eat
breakfast, but that his wife sometimes cooked and his daughter
sometimes visited and cooked.
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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When the ALJ noted that plaintiff indicated in his Function Report
testified that his “health started getting pretty bad” since then.
Plaintiff denied that he drove, went to the post
office, took out the trash, fished, played ball with his grandson,
or did yard work.
He stated that he did not have
friends but did get along with his wife, family, and neighbors.
organizations, and stopped going to church when his vehicle stopped
Plaintiff testified that, during the
summertime, he sometimes sat outside or went to a barbeque.
Regarding self-care, plaintiff testified that he had
difficulty washing his back, and that his shoulder was going bad.
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.
He testified that he had hypertension.
Plaintiff testified that he took various medications, including
Ibuprofen, Naproxen, Tylenol with hydrocodone, medicines for joint
pain, and a muscle relaxer.
Plaintiff stated that
one of his medications caused him to feel light headed, but he did
not know which one.
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.
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.”
The ALJ asked plaintiff to quantify
the pain he normally experienced using a one-to-ten scale, with ten
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
(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
Plaintiff testified that he dislocated his left shoulder
two years ago in a fall from his roof.
He stated that he
did not see the x-rays that were performed and does not know what
his doctors said about his shoulder.
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.
that his shoulder hurt every day, and that he felt popping,
cracking and grinding.
on a one-to-ten scale.
He quantified the pain as an 8
Plaintiff testified that sitting caused back problems.
He stated that he could stand for 20 to 30 minutes,
walk one block, and lift ten pounds.
crouching, kneeling and crawling caused back pain, and he had
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trouble traveling stairs unless he used a cane.
Plaintiff testified that he had lumps on his head and
back, but that they had never been checked and he did not know what
depression, anxiety, and occasional moodiness, and that he cried
often and had felt suicidal, but had made no attempts on his life.
He had never seen a mental health professional but
had thought about doing so.
Plaintiff testified that
he had occasional problems with concentration.
attorney. He testified that he suffered from intermittent but daily
numbness in his legs that was worse on the left side.
Plaintiff also stated “[e]very night when I go to sleep my legs go
Plaintiff and his attorney then had the following
Question (by counsel):
Is it just when you go to sleep
or can it be when you’re sitting up and walking
Answer (by plaintiff):
When I’m sitting up.
when I go to sleep at night my hands and my leg
So if you’re sitting up
during the day it does not go numb, is that
It goes numb too - -
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- - but not as much as when I’m sleeping at
Plaintiff testified that the numbness kept him awake and
that he tossed and turned all night.
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.”
Plaintiff testified that
he experienced numbness if he stood for longer than 30 minutes, and
needed a cane to balance when walking.
that he would be able to type for five minutes, and that he had
trouble with grasping and holding things like cups and plates.
He stated that he had trouble picking up small items
such as coins due to numbness in his fingers.
that he tried to nap for 30 minutes each day in an attempt to
The ALJ then heard testimony from a Vocational Expert
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.
On January 17, 2008, plaintiff saw Barry Burchett, M.D.,
for an internal medicine examination at the request of Missouri
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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.
Plaintiff stated that, for
the past ten years, he had experienced constant pain in his back
near the midline at approximately L5 to S1.
not describe radicular pain or associated numbness or tingling in
the lower extremities.
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.
appearance, mood, orientation and thinking were appropriate, and
his recent and remote memory was good.
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.
Examination of plaintiff’s back revealed no spasm or tenderness.
Straight leg raise testing was positive at 70 degrees on the
left and 90 degrees on the right.
heel and toe walk.
Plaintiff was able to
He could perform a full squat, but
experienced pain when doing so.
Deep tendon reflexes were
symmetrical, and there were no motor or sensory abnormalities in
the lower extremities.
Dr. Burchett’s impression was
chronic low back pain probable degenerative disc disease without
radiculopathy, and untreated hypertension.
noted that plaintiff had a long history of low back pain without
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On February 20, 2008, Marsha Toll, Psy.D., completed a
Psychiatric Review Technique form.
Dr. Toll opined
that plaintiff had no medically determinable impairment.
Dr. Toll observed that plaintiff had no history of treatment and
examination, plaintiff was noted to have a normal appearance, mood,
orientation, and thinking, and good recent and remote memory. (Tr.
plaintiff was seen on September 8, 2009 by Akeeb Adedokun, M.D.
Plaintiff reported that he fell from a roof three
weeks ago and caught himself on beams, and had since experienced
Shoulder radiography revealed a
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
(Tr. 251, 258).
Tylenol 3 is used to relieve mild to moderate pain.
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/
Metoprolol is used to treat hypertension.
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plaintiff was seen on November 5, 2009 for a medical evaluation to
determine eligibility for Missouri state aid.
was noted that plaintiff was taking Metoprolol, but no other
medications were noted.
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.
In a later page of the report, Dr. DeCastro checked
boxes indicating that plaintiff had no edema, skin discoloration,
or shortness of breath.
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.
Records from Medex indicate that plaintiff was examined
by Stanley London, M.D., on February 4, 2010.
London noted that plaintiff’s chief complaints related primarily to
his left shoulder, but also to his neck.
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
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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Upon examination, plaintiff had markedly restricted
range of motion of his left shoulder and neck. (Tr. 268).
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
plaintiff’s fingers was equal, straight leg raise testing was
normal, and his reflexes were normal.
X-ray of the
cervical spine revealed degenerative joint disease, and disc space
narrowing at C5-C7.
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.
On March 29, 2010, James Spence, Ph.D., completed a
Psychiatric Review Technique form.
opined that plaintiff had no medically determinable impairment.
Dr. Spence noted that plaintiff received no ongoing medical
inpatient or outpatient psychiatric treatment, and plaintiff took
no psychiatric medication.
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
On April 8, 2010, Christy Huff completed a Physical
Residual Functional Capacity Assessment form.
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.
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.
She opined that
Ms. Huff opined that plaintiff was limited
in his ability to reach in all directions, but had no other
On August 16, 2010, plaintiff was seen at Bonne Terre
Medical Associates, stating that he was there for a check up and
He also stated that he was
depressed, and that he was having pain in the middle of his back.
Plaintiff’s past medical history was noted as blurred
vision, elevated blood pressure, heartburn and indigestion.
It is noted that plaintiff had not been taking his medications and
that he had financial problems, car problems, and stress.
Upon examination, plaintiff’s neck was normal and supple.
His affect and mood were appropriate.
returned on August 20, 2010 for follow-up and lab results; it does
not appear that examination was performed.
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.”
Plaintiff also complained of right
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thumb pain and a toothache.
Examination, including neck,
neurological, and musculoskeletal system examination, was normal.
The assessment was diabetes, right hand pain, and left knee
pain, and x-rays were ordered.
October 24, 2010, x-ray of
plaintiff’s left knee revealed no evidence of abnormality.
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.
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.
The ALJ determined that plaintiff did not have an impairment
impairment. (Id.) The ALJ determined that plaintiff was unable to
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,
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;
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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
furniture rental agent, and usher.
Using the medical-
vocational guidelines as a framework, and the vocational expert’s
opinions, the ALJ determined that plaintiff was not disabled. (Tr.
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.
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
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.
“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
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
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substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
If the claimant is
Next, the Commissioner
combination of impairments, meaning that which significantly limits
his ability to do basic work activities.
If the claimant’s
Commissioner then determines whether the claimant’s impairment(s)
meet or equal any listed in 20 C.F.R., Subpart P, Appendix 1.
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
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
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
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Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
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).
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
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.
498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
administrative decision, this Court must affirm that decision even
if the record also supports an opposite decision.
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
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
determination is legally insufficient, that the ALJ improperly
considered certain evidence in assessing credibility, and, because
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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
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
capacity, the ALJ must evaluate the credibility of his subjective
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).
the subjective nature of physical symptoms, and the absence of any
reliable technique for their measurement, it is difficult to prove,
Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984).
established the following standard for the evaluation of subjective
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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
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.
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).
When an ALJ explicitly
complaints for a good reason, that decision should be upheld.
Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
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
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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.
Review of plaintiff’s work
record shows that his first year of recorded earnings was 1977,
when he earned $111.25.
He worked sporadically after
that, with markedly low earnings in 1981 and 1984 and no earnings
in 1978, 1979, 1980, 1982, 1983, and 1985.
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.
$9,987.50 in 1999, but earned nearly half that amount the following
year, nothing in 2001, and $77.50 in 2002.
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.
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.
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
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dispositive of the issue of his credibility.
Instead, the ALJ
wrote: “the work record is only one factor to be considered when
assessing credibility.” (Tr. 15).
The ALJ then continued his
inconsistencies in the record that detracted therefrom, including
the lack of correlation between plaintiff’s testimony and the
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
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.
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
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.
ALJ noted that, despite plaintiff’s allegations of debilitating
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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.
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.
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
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
treatment, despite the fact that he was covered by Medicaid.
finding is supported by the record.
While plaintiff alleged that
his condition was disabling beginning in February of 2006, there
are no medical records indicating treatment at that time.
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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
His last medical care of record was dated three months
before the administrative hearing.
He was never advised to have
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
In addition, while plaintiff testified
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
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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.
plaintiff testified that he last worked in 2005 as a handyman but
worked only one day because the office was too far away.
Cessation of work for reasons unrelated to a medical
condition militate against a finding of disability.
372 F.3d at 961 (citing Browning v. Sullivan, 958 F.2d 817, 823
(8th Cir. 1992)).
Plaintiff also gave inconsistent testimony regarding
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
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
However, plaintiff also testified that he
had significant problems sitting, and had to move constantly. (Tr.
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
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detracting from plaintiff’s credibility.
An ALJ may disbelieve
subjective complaints where there are inconsistencies on the record
as a whole.
Battles, 902 F.2d at 660.
Because the ALJ considered
discrediting plaintiff’s subjective complaints, this Court is bound
by his adverse credibility determination.
Hogan, 239 F.3d at 962.
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.
The ALJ must assess a claimant’s RFC based upon all
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.
Hutsell v. Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer,
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245 F.3d at 703-04; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
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.
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.
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. §§
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
neurological deficits such as motor, sensory or reflex loss or
other signs of impingement, or persistent inflammatory signs.
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ALJ noted that the medical evidence established no inability to
ambulate effectively or perform fine or gross movements.
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.
However, the ALJ was not
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
Trenary, 898 F.2d at 1364.
With the exception of
claimant’s statements alone will not establish disability.
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
physician totally mischaracterizes his role.
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.
constitute substantial evidence.
Charles v. Barnhart, 375 F.3d
777, 783 (8th Cir. 2004) (generally when consulting physician
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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
1382c(a)(3)(A) (defining disability as the “inability to engage in
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
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
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
This is an accurate characterization of Dr. DeCastro’s
As noted in the above summary of the medical information,
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while Dr. DeCastro’s “History and Physical” form contains a space
examination, Dr. DeCastro left the space blank.
Dr. DeCastro later noted that plaintiff had no shortness of breath,
skin discoloration, or swelling, (Tr. 265), he did not indicate
plaintiff’s suggestion that the ALJ erred in his treatment of Dr.
Plaintiff also appears to suggest that the ALJ did not
properly explain his rationale for the weight given Dr. London’s
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
This is supported by the record.
As the ALJ noted, there is no such diagnosis from any other medical
performed his consultative evaluation.
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
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
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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)).
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.
an ALJ’s RFC
determination must be supported by some medical evidence, “the
burden of persuasion to prove disability and
remains on the claimant.”
Vossen, 612 F.3d at 1016.
herein cannot demonstrate that his functional limitations are
greater than those described in the ALJ’s RFC assessment.
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
Plaintiff herein cannot demonstrate that his functional
limitations are greater than those described in the ALJ’s RFC
The ALJ’s RFC determination is also supported by his
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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.
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.
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.”
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
considered and weighed all of the evidence of record.
the hypothetical questions he posed to the VE included all the
impairments he found to be credible.
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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)).
substantial evidence on the record as a whole, and should therefore
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.
Commissioner is affirmed, and plaintiff’s Complaint is dismissed
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of August, 2013.
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