Voegtlin v. Astrue

Filing 24

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is affirmed. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 2/19/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRANKLIN VOEGTLIN,
Plaintiff,
vs.
CAROLYN W. COLVIN1
Commissioner of Social
Security Administration,
Defendant.

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Case No. 4:11CV1980 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
applications for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq and Supplemental Security Income (SSI)
under Title XVI, 42 U.S.C. §1381, et seq. For the reasons set forth below, the
Court affirms the Commissioner's denial of Plaintiff's applications.
FACTS AND BACKGROUND

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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 be substituted for Michael J. Astrue as the Defendant in
this suit. No further action needs to be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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When Plaintiff appeared to testify at the hearing on January 4, 2011 he was
27 years old. He has completed his high school and had an Associate Degree in
Computer Science from college. Plaintiff has had training/employment as a heavy
equipment operator. He subsequently became incarcerated and upon release he
searched for work but could not secure employment without a medical release. He
could not focus and had back pain. At the time of the hearing the Plaintiff was
living with his fiancée.
Plaintiff also testified at the hearing that he has difficulties sleeping and he
also has anxiety issues. He also stated that he has crying spells that come on for no
reason and sometimes last for up to twenty minutes. Plaintiff has back problems
and pain which affects his ability to stand and walk for long periods of time. He
suffers from major headaches that occur every other day, but has not been able to
determine the cause. The ALJ found Plaintiff had the severe impairments of:
mood disorder, NOS, attention deficit hyperactivity disorder (“ADHD”)
degenerative changes of the spine, and hepatitis-C (20 CFR 404.1520 (c) and
416.920 (c) ).
A vocational expert also testified. The VE testified, in relation to an onset
date of December 15, 2004, and in response to a hypothetical, that Plaintiff could
not perform any past relevant work. The VE also concluded from the hypothetical
question that Plaintiff has capacity to remember, understand and carry out at least
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simple instructions and non-detailed tasks, respond appropriately to supervisors
and co-workers, adapt to routine/simple work changes, and maintain regular
attendance and work presence without special supervision. He is also limited to
work that does not involve direct contact with food products.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq., and XVI of the Act, 42 U.S.C. §
1381, et seq., was denied on April 12, 2010. On April 20, 2010, Plaintiff filed a
timely Request for Hearing by Administrative Law Judge . After a hearing, the
ALJ issued an unfavorable decision dated February 7, 2011. On April 1, 2011,
Plaintiff filed a Request for Review of Hearing Decision with the Appeals Council.
The Appeals Council denied Plaintiff's request for review on September 23, 2011.
Thus, the decision of the ALJ became the final decision of the agency.
Standard For Determining Disability
The Social Security Act defines as disabled a person who is “unable to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education, and
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work experience, engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in the immediate
area in which he lives, or 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).
A five-step regulatory framework is used to determine whether an individual
claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a); see
also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011) (discussing the five-step
process). At Step One, the ALJ determines whether the claimant is currently
engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at 611. At Step Two, the
ALJ determines whether the claimant has a severe impairment, which is “any
impairment or combination of impairments which significantly limits [the
claimant's] physical or mental ability to do basic work activities”; if the claimant
does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)
(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611.
At Step Three, the ALJ evaluates whether the claimant's impairment meets
or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
claimant has such an impairment, the Commissioner will find the claimant

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disabled; if not, the ALJ proceeds with the rest of the five-step process. 20 C.F.R.
§§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545 (a)
(1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by comparing
the claimant's RFC with the physical and mental demands of the claimant's past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv),
416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant
work, he is not disabled; if the claimant cannot, the analysis proceeds to the next
step. Id. At Step Five, the ALJ considers the claimant's RFC, age, education, and
work experience to determine whether the claimant can make an adjustment to
other work in the national economy; if the claimant cannot make an adjustment to
other work, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a

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significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
ALJ’s Decision
In the application of the five-step analysis, the ALJ in this case determined
at Step One the ALJ found Plaintiff had not performed substantial gainful activity
since the alleged onset date of disability of December 15, 2004. At Step Two, the
ALJ found Plaintiff’s severe impairments were: mood disorder, NOS; attention
deficit hyperactivity (“ADHD”); degenerative changes of the spine; and hepatitis
C. At Step Three the ALJ concluded Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
Prior to Step Four the ALJ found Plaintiff had the residual functional
capacity (RFC) to perform light work: Plaintiff retains the capacity to remember,
understand, and carry out at least simple instructions and non-detailed tasks;
respond appropriately to supervisors and co-workers; adapt to routine/simple work
changes; and maintain regular attendance and work presence without special
supervision. The Plaintiff is limited to work that does not involve direct contact
with food products.
At Step Four, the ALJ found Plaintiff was unable to perform past relevant
work.
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At Step Five, considering the age, education, work experience, and residual
functional capacity, the ALJ found, there are jobs that exist in significant numbers
in the national economy that the Plaintiff can perform. The Plaintiff does not have
a disability as defined in the Social Security Act.
Standard For Judicial Review
The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports the
Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent
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positions from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)). The Court should disturb the administrative decision only if it falls
outside the available “zone of choice” of conclusions that a reasonable fact finder
could have reached. Hacker v.Barnhart, 459 F.3d 934, 936 (8th Cir.2006).
Discussion
In his appeal of the Commissioner's decision, Plaintiff makes the following
arguments: (1) The hypothetical to the vocational expert was flawed and did not
capture the consequences of Plaintiff’s impairment and the response of the
vocational expert does not therefore rise to the level of substantial evidence; (2)
The ALJ finding as to the Residual Functional Capacity is not supported by
evidence as required in Singh and Lauer.
The hypothetical to the vocational expert was flawed and did not capture the
consequences of Plaintiff’s impairment and the response of the vocational
expert does not therefore rise to the level of substantial evidence.
Plaintiff argues that the hypothetical question to the Vocational Expert is
flawed as it relied upon an incorrect RFC2. The RFC included those credible

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A claimant's RFC is the most an individual can do despite the combined effects of
all of his or her credible limitations. See 20 C.F.R. § 404.1545. An ALJ's RFC
finding is based on all of the record evidence, including the claimant's testimony
regarding symptoms and limitations, the claimant's medical treatment records, and
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impairments and restrictions applicable to Plaintiff. These credible aspects
allowed the ALJ to conclude the range and type of work to be simple, light work.
“It is the claimant’s burden, and not the Social Security Commissioner’s burden, to
prove the claimant’s RFC.” Pearsall, 274 F.3d at 1217 (citing Anderson, 51 F.3d at
779). The ALJ was justified in relying on the vocational expert’s testimony in
finding Plaintiff not disabled (Tr. 23-24). See Nelson v. Sullivan, 946 F.2d 1314,
1317 (8th Cir. 1991). The hypothetical question need only set out with reasonable
precision the impairments of the claimant which have been found as credible by
the ALJ. See McCoy, 648 F.3d at 617; Gragg v. Astrue, 615 F.3d 932, 940 (8th Cir.
2010).
The ALJ properly included all credible limitations in Plaintiff’s RFC
(Tr. 16-17). The vocational expert testified that an individual with Plaintiff’s
limitations could perform work existing in significant number in the national
economy (Tr. 23-24, 40). The ALJ, therefore, properly concluded Plaintiff was
capable of other work.
The ALJ finding as to the Residual Functional Capacity is not supported by
evidence as required in Singh and Lauer.

The Eighth Circuit has noted that the ALJ must determine a claimant’s RFC
based on all of the relevant evidence, including the medical records, observations
the medical opinion evidence. See Wildman v. Astrue, 596 F.3d 959, 969 (8th
Cir.2010); see also 20 C.F.R. § 404.1545; Social Security Ruling (SSR) 96–8p.
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of treating physicians and others, and an individual’s own description of his
limitations. See McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (citing Flynn
v. Astrue, 513 F.3d 788, 792 (8th Cir. 2008). “It is the claimant’s burden, and not
the Social Security Commissioner’s burden, to prove the claimant’s RFC.”
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995)). The RFC only needs to include
Plaintiff’s credible limitations. See Tindell v. Barnhart, 444 F.3d 1002, 1007
(8th Cir. 2006) (“The ALJ included all of Tindell’s credible limitations in his RFC
assessment, and the ALJ’s conclusions are supported by substantial evidence in the
record.”). The ALJ articulated appropriate bases for the weight given the evidence
of record and found that Plaintiff retained the RFC to perform a range of simple,
light work.
Plaintiff may be confused on the significance of Singh and Lauer here. It is
true that the formulation of the RFC is a medical question and must be based on
some medical evidence. Singh v. Apfel, 222 F.3d 448(8th Cir. 2000) and Nevland v.
Apfel, 204 F.3d 853 (8th Cir. 2000). An ALJ has the duty at, step four, to
formulate the RFC based on all the relevant, credible evidence of record. See
McCoy, 648 F.3d at 614.

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The the ALJ’s decision is supported by medical evidence. The regulations
explain that medical evidence includes medical records and observations. See 20
C.F.R. §§ 404.1512(b)(1), 404.1513(b), 404.1528(b)-(c), 416.912(b)(1),
416.913(b), 416.928(b)-(c) (2012). Plainitff had normal gait, normal ranges of
motion, no neurological deficits, full strength, and no edema (Tr. 190, 192, 196,
198, 200, 222, 240, 467, 533). He appeared in no acute distress (Tr. 190, 192, 196,
198, 200, 240, 411, 423, 434, 495, 503). See McCoy, 648 F.3d at 614 (citing
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005). Plaintiff was alert,
oriented, calm, and cooperative, and exhibited normal mood, affect, behavior,
speech, motor activity, thought processes, memory, and cognitive ability (Tr. 180,
190. 192, 196, 198, 200, 255-56, 258, 260-61, 263-64, 268-70, 275, 277, 282-83,
292, 296, 298-99, 301, 303-04, 306, 309-, 313, 313, 511). He exhibited no signs of
a severe mental impairment (Tr. 256, 263, 283, 298-99, 304, 306, 309-11, 313).
Plaintiff was assigned Global Assessment of Functioning (“GAF”)3 scores between
55 and 75 (Tr. 259, 262, 264, 269-70, 272-73, 288, 292-93, 295, 297, 300-01, 303,
308, 310, 512-14). See Goff v. Barnhart, 421 F.3d 785, 789, 791, 793 (8th Cir.

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A GAF is the clinician’s judgment of the individual’s overall level of functioning,
not including impairments due to physical or environmental limitations. See
American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed. revision 2000) (“DSM-IV-TR”). A GAF of 51-60
is indicative of moderate symptoms or moderate difficulty in social, occupational,
or school functioning.
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2005) (GAFs of 58 and 60 support ALJ’s limitation for simple, routine, repetitive
work).
Determining credibility is the primary responsibility of the ALJ. In making
this determination, the ALJ considered the record as a whole, including Plaintiff’s
subjective complaints (Tr. 15-16, 18-22). The ALJ properly determined that
Plaintiff’s allegations regarding his limitations were not totally credible. The ALJ
properly considered that Plaintiff’s allegations were inconsistent with the record as
a whole, including his improvement with treatment, his minimal and routine
medical treatment, his noncompliance with treatment, the medical evidence, and
the ALJ’s observations. This is all consistent with the requirements of Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). In analyzing a claimant’s subjective
complaints of pain, an ALJ examines the following: 1) the claimant’s daily
activities; 2) the duration, frequency and intensity of pain; 3) dosage, effectiveness,
and side effects of medication; 4) precipitating and aggravating factors;
and 5) functional restrictions. See 20 C.F.R. §§ 404.1529, 416.929. The evidence
of record supported the ALJ’s determination that Plaintiff was not fully credible
and this court should defer the credibility determination. See Wildman, 596 F.3d at
968.
The medical records disclosed that Plaintiff improved with proper medical
treatment. Plaintiff alleged disability beginning in December 2004 due to back
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pain, possible colon cancer, bipolar disorder, and ADHD (Tr. 106, 112, 160).
While Plaintiff complained of back pain, the medical records show that his
complaints improved with treatment (Tr. 19). Plaintiff started on gabapentin in
January 2010 and he reported that his symptoms improved (Tr. 418, 423, 495,
533). He also received hydrocodone that improved his back pain (Tr. 495, 503,
533). Plaintiff’s hepatitis C was stable and asymptomatic (Tr. 19, 379). These
records were properly reviewed. See Perkins v. Astrue, 648 F.3d 892,
903 (8th Cir. 2011) (citing Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010)).
The Plaintiff’s mental impairments also improved with treatment (Tr. 1920). The ALJ properly considered Plaintiff’s ADHD treatment (Tr. 19-20). The
medical records show that Plaintiff’s ADHD improved with treatment (Tr. 19, 410,
418, 420, 511-12). And despite being diagnosed with ADHD when he was 17years-old, he performed substantial gainful activity and ran a business (Tr. 19,
120). See Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (“Thus, despite
suffering from what she calls ‘extreme fatigue,’ Van Vickle continued working for
over four years.”). Plaintiff obtained his associate’s degree after this diagnosis (Tr.
31, 166-67). The medical records also show that Plaintiff’s depression improved
with treatment (Tr. 19-20, 240, 259, 268, 271, 274, 276-77, 282, 304, 306, 410-11).
Plaintiff asserted that he became disabled beginning on December 2004 due
to back pain, but he did not seek any medical treatment for back pain until October
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2008 (Tr. 294). He did not seek treatment between November 2008 and January
2010 (Tr. 424). Plaintiff’s treatment for his back pain did not support the extent of
his allegations. Plaintiff testified that he suffered from frequent headaches (Tr.
37-38). The ALJ properly found that Plaintiff never sought treatment for
headaches (Tr. 15). Plaintiff received routine and conservative treatment for his
impairments (Tr. 19). See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001)
(citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). Plaintiff’s complaints
were inconsistent with his level of treatment.
In addition to Plaintiff’s limited medical treatment, he did not comply with
his prescribed treatment (Tr. 20-21). See Guilliams, 393 F.3d at 802 (citing Gowell,
242 F.3d at 797). Despite Plaintiff’s improvement with treatment, he did not
comply with his prescribed medications for depression (Tr. 20). Plaintiff routinely
discontinued his medications (Tr. 233, 235, 263, 271). When medications were
restarted, his depression would continue to be controlled (Tr. 276-77, 304).
Plaintiff was discharged from a drug treatment program for noncompliance (Tr.
247). He was not interested in mental health therapy (Tr. 512). The ALJ
also properly considered Plaintiff’s cancelled medical appointments and his no
shows (Tr. 21,261, 278-79, 380-81, 283, 285, 288, 295-96, 312, 356, 413, 527).
See Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (“The ALJ paid
particular attention to the fact that Eichelberger cancelled several physical therapy
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appointments . . . .”). Plaintiff’s noncompliance supported the conclusion of a lack
of credibility.
The ALJ is not free to accept or reject the claimant’s subjective
complaints solely on the basis of personal observations, but it is a factor that must
be considered (Tr. 21). See Polaski, 739 F.2d at 1322. Here the ALJ observed that
Plaintiff did not display any difficulty concentrating or focusing at the
administrative hearing (Tr. 21).
The ALJ also properly considered Plaintiff’s criminal history (Tr. 18). See
Simmons v. Massanari, 264 F.3d 751, 756 (8th Cir. 2001). The administrative
record shows that Plaintiff was in prison between October 2005 and November
2005, April 2006 and October 2006, January 2007 and February 2008, August
2008 and December 2008, and December 2008 and July 2009 (Tr. 32, 187, 256,
270, 291, 299, 313, 518). See 20 C.F.R. § 404.468 (2012). Plaintiff’s criminal
history does not support his credibility (Tr. 18).
Plaintiff argues that a worthy consideration of Dr. Asher would have been
beneficial to him. The ALJ, however, found that Dr. Asher’s opinion was
conclusory and not supported by the record (Tr. 21). Dr. Asher’s June 2010
medical opinion is a simple, check-mark box form and the doctor provided little to
no explanation for his opinion (Tr. 488-90). See Teague v. Astrue, 638

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F.3d 611, 615 (8th Cir. 2011) (“Given that the ‘check-off form’ did not cite any
clinical test results or findings and Dr. Lowder’s previous treatment notes did not
report any significant limitations due to back pain, the ALJ found that the MSS
was entitled to ‘little evidentiary weight.’”); Wildman, 596 F.3d at 964 (the ALJ
properly discounted a physician’s opinion because it was conclusory, consisted of
three checklist forms, cited no medical evidence, and provided little to no
elaboration). The Doctor’s conclusory opinion was, therefore, not entitled to
significant weight and was in conflict with the record as a whole.
The ALJ also properly considered the medical opinion of the state agency
medical consultant (Tr. 21-22). See Casey v. Astrue, 503 F.3d 687, 694 (8th Cir.
2007) (“The ALJ did not err in considering the opinion of [the state agency
medical consultant] along with the medical evidence as a whole.”). In April 2010,
Marsha Toll, Psy.D., reviewed the relevant medical records and found that Plaintiff
could understand, remember, and carry out simple instructions; maintain adequate
attention and sustain an ordinary routine without special supervision; interact
appropriately with peers and supervisors; and adapt to most usual changes common
to a competitive work setting (Tr. 451-65). The ALJ properly considered this
opinion in assessing Plaintiff’s RFC and accounted for the limitations (Tr. 21-22).
The ALJ’s findings were clearly based upon the substantial evidence on the
record as a whole regarding his impairments, the medical opinions in the record,
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and the ALJ’s specific credibility findings. The ALJ applied the proper standard to
the facts and the determination of Plaintiff’s RFC and his ability to perform his
past relevant work is supported by the record as a whole.
Conclusion
After careful review, the Court finds the ALJ’s decision is supported by
substantial evidence on the record as a whole. The decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 19th day of February , 2014.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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