Kroenlein, Jr. v. Astrue
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED the relief sought by plaintiff in his complaint and his brief in support of the complaint is denied. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 1/3/13. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES KROENLEIN, JR.,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Case No. 4:12-CV-00068 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On April 23, 2009, plaintiff James Russell Kroenlein, Jr. filed applications for a
period of disability and disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401 et. seq., (Tr. 97-99), and for supplemental security income
(SSI), Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of January 23,
2009. (Tr. 100-103).1 After plaintiff’s application was denied on initial consideration
(Tr. 44-49), he requested a hearing from an Administrative Law Judge (ALJ). See 5051 (acknowledging request for hearing).
Plaintiff and counsel appeared for a hearing on May 18, 2010. (Tr. 26-40). The
ALJ issued a decision denying plaintiff’s application on July 30, 2010 (Tr. 10-25), and
the Appeals Council denied plaintiff’s request for review on December 12, 2011 (Tr. 16). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
The ALJ’s decision states that March 6, 2009 was the date plaintiff filed his Title
II and Title XVI applications. (Tr. 13). The Application Summary for Disability Insurance
Benefits and Supplemental Security Income lists April 23, 2009 as the date of filing.
II. Evidence Before the ALJ
A. Disability Application Documents
In his Disability Report (Tr. 131-140), plaintiff listed his disabling conditions as
a back injury, bulging discs, sacroiliac joint dysfunction, depression, panic attacks,
anxiety, lower back and leg pain, and difficulty sleeping. He stated that he worked two
days in 2009 and has not worked a full week since 2007. He claimed to have difficulty
walking, standing, sitting, bending, and sleeping. Plaintiff listed past employment as
auto body repair and delivery driver. Plaintiff reported that his medications include
Ativan for panic attacks, Midol and Tylenol Arthritis for back pain, Paxil for depression
and anxiety, and Wellbutrin for depression.2 Plaintiff also indicated that he receives
In his Function Report (Tr. 166-176), plaintiff stated that he lives alone in a
house owned by his parents and is able to make coffee, shower, perform limited
chores, feed animals, and prepare meals. Plaintiff cares for his two children each
Wednesday and every other weekend, but indicated that he needs the help of his
parents in order to care for his children and pets. He does not require any special
reminders in order to maintain his own personal care or to take medicine. He is able
to prepare meals, drive, grocery shop, pay bills, handle a savings account, count
change, and use a checkbook. Plaintiff indicated that he goes outside every day as long
as he is not suffering from pain or depression. Plaintiff listed his hobbies as watching
According to the most recent record, dated August 31, 2010, plaintiff’s
medications also include Xanax XR and Remeron. (Tr. 337).
Prolotherapy is an orthopedic procedure used to strengthen weak joints by
injecting a solution directly on the site of the torn or stretched ligament or tendon.
American Association of Orthopaedic Medicine, http://www.aaomed.org/InjectionTherapy-Faqs (list visited October 22, 2012).
sports and reading and noted that he can no longer play golf. He visits with friends and
goes out to eat a couple of times a week. Plaintiff reported that he does not have any
problems getting along with others. Plaintiff claimed that his alleged disabilities affect
his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and complete
tasks. Plaintiff further reported that he has trouble handling stress when in pain and
avoids physical activities for fear of hurting his back.
In the Third Party Function Report (Tr. 149-157), plaintiff’s mother, Margaret
Kroenlein, reported that she lives next door to plaintiff and is with him “almost all the
time” because he “can’t manage himself.” However, Ms. Kroenlein indicated that
plaintiff makes food daily, and generally has no problem taking care of his children or
B. Hearing on May 18, 2010
At the time of the hearing, plaintiff was a 41-year-old high school graduate. (Tr.
29). Plaintiff testified that he worked for his father’s automotive body shop for
approximately 12 years, but left in January 2009 because of pain from a back injury.
During his employment, plaintiff engaged in repair work, including sanding, painting,
and taking cars apart. Plaintiff stated that he had not worked at the body shop since
January 2009 and had not sought employment elsewhere because of his pain and panic
attacks. (Tr. 29-30).
Plaintiff testified that his “anxiety level is there all of the time,” that he suffers
from “terrible” depression, and that the facet rhizotomy4 procedure performed in 2007
Facet rhizotomy is a percutaneous radiofrequency lysis of the innervation of
a facet. Stedman’s Med. Dict. 1032 (27th ed. 2000). This procedure interrupts nerve
conduction to relieve joint pain in the spine. PainCare, available at
g-rfl.html (last visited October 19, 2012).
or 2008 was not beneficial in alleviating his pain. (Tr. 30-31). Plaintiff admitted to
abusing opiates two or three years prior to the hearing, but had since undergone
counseling in order to eliminate the problem. (Tr. 32).
Plaintiff claimed that he experiences panic attacks at least three times a week
and sometimes every day. These attacks last anywhere from ten minutes to an hour.
Plaintiff testified that subsequent to an attack he experiences anxiety and feels the
need to isolate himself from others. (Tr. 33). Plaintiff further claimed that depression
causes him to experience “crying spells” at least a couple of times a week and
sometimes daily. (Tr. 33-34). These spells last approximately five to ten minutes.
However, plaintiff denied experiencing suicidal or homicidal thoughts. (Tr. 34). Plaintiff
indicated that he gets no more than two hours of sleep per night and has not slept
through an entire night in the year or two preceding the date of the hearing. (Tr. 34).
Plaintiff further testified that at least once a month for a year he saw Manish
Suthar, M.D, at the Pain Prevention and Rehab Center. In a four year span, plaintiff
believed he had received approximately two dozen epidurals that provided pain relief
for a maximum of four hours per each injection. Plaintiff claims that it is painful for him
to sit for more than thirty minutes, stand for more than forty-five minutes, or reach
above his shoulders or head. (Tr. 35-36). Plaintiff cannot drive for more than thirty or
forty-five minutes without exiting the vehicle, lying down, and stretching.
Gerald D. Belchick, Ph.D., a vocational expert, provided testimony regarding
employment opportunities for a 40-year-old hypothetical individual with 12 years of
education, plaintiff’s work experience, and who has the ability to lift and carry 20
pounds occasionally, 10 pounds frequently, who can stand or walk for six hours out of
eight, sit for six, occasionally climb stairs and ramps, ropes ladders and scaffolds, and
who can occasionally stoop, kneel, crouch, and crawl. (Tr. 37). Dr. Belchick opined that
such an individual would be able to perform light, unskilled work. As examples, Dr.
Belchick opined that the hypothetical individual could work in an assembler position of
which there are 2,300 jobs within the State of Missouri or a packaging position of which
there are 2,100 jobs in the State of Missouri. (Tr. 38).
The ALJ then added to the hypothetical the ability to understand, remember and
carry out simple instructions and non-detailed tasks, the need to be away from regular
constant contact with the general public, and the ability to make simple work related
decisions and take appropriate precautions to avoid hazards. Dr. Belchick testified that
the hypothetical individual with these additional attributes would still be able to perform
as an assembler or a packager. (Tr. 38).
Lastly, plaintiff’s attorney asked whether panic attacks that occur at least three
times a week and have the effect of preventing the hypothetical individual from
interacting appropriately in a work-like setting during and after the attacks would
eliminate the assembler and packager employment opportunities. The vocational expert
answered in the affirmative. (Tr. 39).
C. Medical Evidence
The relevant medical record reflects that from 2006 to 2010, plaintiff sought
treatment from Meier Clinic for symptoms of depression, anxiety, and panic attacks. The
record further reflects that from 2008 to 2010, plaintiff sought treatment for lower back
pain from the Pain Prevention and Rehabilitation Center.
On October 24, 2006, Terry D. Guiley, M.D., performed a psychiatric evaluation
of plaintiff at Meier Clinic. Treatment notes reflect that plaintiff encountered a severe
onset of panic attacks approximately two months prior to the evaluation and suffered
from depression that seemed to be triggered from a divorce that occurred nine years
earlier. (Tr. 245). On December 5, 2006, Dr. Guiley noted that plaintiff was doing
better. However, on May 24, 2007, Dr. Guiley reported that in early May plaintiff slipped
back into a depression followed by intense panic attacks and lack of sleep. Dr. Guiley
prescribed Xanax5 and Lexapro.6 (Tr. 244). On May 29, 2007, Dr. Guiley indicated that
the panic was under control, but anxiety persisted upon wakening. (Tr. 243).
On November 7, 2007, plaintiff voluntarily admitted himself to St. John’s Mercy
Medical Center for “major depression/substance dependence.” (Tr. 224). However,
plaintiff told the admitting physician, Eduardo L. Garcia-Ferrer, M.D., that “to be honest
it was stupid, I talked suicide to get my wife to feel sorry for me” and that he felt
hopeless “but not suicidal.” (Tr. 216).
On November 13, 2007, plaintiff visited Dr. Guiley. Treatment notes indicate that
plaintiff “cut Xanax because [he] felt it was making him ‘down,’” that he wished he were
dead but denied suicidal ideation, and that for a couple of weeks he stopped taking his
pain medication. Plaintiff told Dr. Guiley that his depression was severe because his
wife had recently banned him from their shared residence and obtained a restraining
order against him because she discovered that he “had done cocaine with friends one
time recently.” On November 29, 2007, plaintiff reported that his depression was still
“intolerable,” but that he rarely took his Xanax prescription. (Tr. 242). However, on
Xanax is indicated for the treatment of panic disorder. See Phys. Desk Ref.
2655-56 (60th ed. 2006).
Lexapro, or Escitalopram, is used to treat depression and generalized anxiety
disorder. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html (last
visited on Nov. 7, 2012).
December 27, 2007, Dr. Guiley noted a “definite improvement” in depression, anxiety,
concentration, sleep, and appetite. (Tr. 241).
On January 8, 2008, plaintiff saw Dr. Suthar at the Pain Prevention and
Rehabilitation Center for medication refills. Office notes indicate that plaintiff had
undergone a rhizotomy prior to the appointment and that plaintiff reported he was
“beginning to feel significant relief of his pain,” felt his pain was “continuing to improve
from the procedure,” and that there were more days when he took only two 5 mg of
Percocet rather than the three allowed. Dr. Suthar indicated that plaintiff suffered from
chronic left SI joint dysfunction. (Tr. 261). On February 7, 2008, plaintiff returned to
Dr. Suthar and contradictorily stated that he “has still not begun to feel any benefit
from the [rhizotomy].” (Tr. 260).
On February 26, 2008, plaintiff returned to Meier Clinic in which Dr. Guiley
reported “some definite improvement in situation, mood, concentration,” an absence
of panic attacks, and the effectiveness of prescriptions. During the appointment, plaintiff
stated the he had “not felt this good for as long as he [could] recall.” (Tr. 241).
On March 10, 2008, plaintiff had a follow-up visit with Dr. Suthar. Office notes
indicate that plaintiff seemed to be “doing reasonably well.” Dr. Suther noted that
plaintiff tended to struggle towards the end of the day, but was able to rest and recover
with use of medicines. Dr. Suthar refilled the Percocet prescription and provided a trial
of Lunesta to assist with sleep. However, on March 23, 2008, plaintiff went to the
emergency department at Missouri Baptist Medical Center with complaints of back pain.
Leonard D. Winer, M.D., the emergency physician, reported that plaintiff was tender in
the paraspinal low left back muscles but had full range motion of the knee and hip. Dr.
Winer indicated a diagnosis of back pain and radiculitis7 and prescribed Flexeril8 and
Prednisone.9 (Tr. 269-281).
Plaintiff returned to Dr. Suthar on March 27, 2008 to discuss the hospital visit and
indicated that he was experiencing an increased pain in his left lower back that radiated
down to the posterior aspect of his left lower leg. Plaintiff attributed the pain to his
work at the auto body shop. Dr. Suthar noted that plaintiff stopped taking the Percocet
a few days prior to the visit because plaintiff claimed it was not helping the pain. Dr.
Suthar advised plaintiff to continue the Percocet twice daily. (Tr. 258).
On April 22, 2008, plaintiff returned to Meier Clinic with complaints of
exacerbated depression and significant marital and financial stress. Dr. Guiley continued
plaintiff on Lexapro, a retrial of Cymbalta,10 Xanax, Adderall,11 and a trial of Ativan. On
May 1, 2008, plaintiff’s mother called Dr. Guiley with concerns that plaintiff’s
depression, panic attacks, and insomnia were becoming worse. Dr. Guiley made
adjustments to plaintiff’s medication. (Tr. 240). On May 13, 2008, plaintiff informed Dr.
Guiley that he had weaned himself off all medications except Adderall, that he no longer
Disorder of the spinal nerve roots. See Stedman’s Med. Dict. 1503 (27th ed.
Flexeril is indicated as an adjunct to rest and physical therapy for relief of
muscle spasm associated with acute musculoskeletal conditions. See Phys. Desk Ref.
1832-33 (60th ed. 2006).
Prednisone is used to treat the symptoms of low corticosteroid levels. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000091/ (last visited Nov. 7, 2006).
Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety
disorder; pain and tingling caused by diabetic neuropathy and fibromyalgia.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html (last visited on
Nov. 7, 2012).
Adderall is used to control attention deficit hyperactivity disorder (ADHD).
gname=Adderall+Oral (last visited Oct. 29, 2012).
felt a sense of racing thoughts, did not suffer from any recent panic attacks, and had
been sleeping well. Plaintiff further reported that his divorce was finalized which
provided him with a sense of relief. (Tr. 239). However, on May 22, 2008 Dr. Guiley
readjusted plaintiff’s medications due to plaintiff’s reports of intense anxiety, sadness,
and insomnia. (Tr. 238). On May 27, 2008, Dr. Guiley made another medication
adjustment as plaintiff continued to suffer severe panic and increased depression from
his joint pain. (Tr. 237).
On May 28, 2008, plaintiff returned to Dr. Suthar for a follow-up visit. Dr. Suthar
noted that the lumbar radicular symptoms were consistent with an L5-S1 nerve root
irritation. (Tr. 257). On June 24, 2008, plaintiff told Dr. Guiley that the Xanax
prescription “help greatly” for the panic attacks. (Tr. 237). On June 26, 2008, plaintiff
underwent a sacroiliac joint injection with corticosteroid at the Pain Prevention and
Rehabilitation Center.12 (Tr. 263).
On July 22, 2008, plaintiff returned to Meier Clinic and reported that he felt
depressed, helpless, hopeless, and that nothing made him happy. Dr. Guiley noted that
these fluctuating moods tended to occur for about 3-4 days, but that the panic and
anxiety were fairly well controlled. Plaintiff was instructed to increase Lexapro to 30mg
on “bad days.” (Tr. 236).
On July 24, 2008, plaintiff returned to Dr. Suthar who reported that plaintiff was
“doing reasonably well” and that the sacroiliac joint injection “settle[d] his pain down
Sacroiliac joint injections provide relief from pain associated with sacroiliac
joint dysfunction. Anti-inflammatory medication (corticosteroid) is included in the
injection to provide pain relief by reducing inflammation within the joint. Spine-Health,
visited October 25, 2012).
dramatically at least to the point that he was able to tolerate the reduction in his
Percocet from 10 mg to 5 mg 3 times a day.” (Tr. 256).
On September 16, 2008, plaintiff saw Dr. Guiley who noted that the “depression
[was] definitely gone since Wellbutrin started,” but “anxiety remain[ed] severe”
although it did “not always proceed to full panic.” Plaintiff also complained of difficulty
sleeping. Dr. Guiley adjusted plaintiff’s medications. (Tr. 235).
On September 17, 2008 plaintiff returned to the Pain Prevention and
Rehabilitation Center for a follow-up visit. Dr. Suthar reported that plaintiff was doing
reasonably well and that his pain seemed adequately controlled. (Tr. 255). On October
8 and November 4, 2008, plaintiff underwent prolotherapy sessions for the left SI joint
dysfunction.13 (Tr. 254, 252).
On December 28, 2008, plaintiff received another
sacroiliac joint injection with corticosteroid. (Tr. 262).
On December 29, 2008, plaintiff reported to Dr. Suthar that the combination of
the therapy and cortisone injections helped the pain throughout December. (Tr. 253).
On January 27, 2009, plaintiff underwent a third prolotherapy session. At the session,
plaintiff expressed an interest in reducing his pain medication and Dr. Suthar provided
him with specific instructions. (Tr. 251).
On February 19, 2009, plaintiff returned to Meier Clinic. Dr. Guiley indicated that
he was “doing well except for sleep.” (Tr. 320). On February 24, 2009, plaintiff
underwent his fourth prolotherapy session. Plaintiff told Dr. Suthar that the “past month
[was] the best month he has had,” he was able to sleep, and had periods of complete
pain relief. (Tr. 250). On March 19, 2009, plaintiff underwent his fifth prolotherapy
See supra note 3.
session. He told Dr. Suthar that he continued to have another excellent month in pain
control and that he was traveling to England that week. (Tr. 249). On March 31, 2009,
plaintiff returned to Meier Clinic reporting that his panic was worsening. Dr. Guiley noted
that “anxiety seems to be in response to situations in which he must be responsible.”
On April 20, 2009, plaintiff reported to Dr. Suthar that he was doing very well
overall, that he believed the prolotherapy was helping greatly, and expressed his desire
to skip a month of the prolotherapy and cut back on his narcotic pains medications. (Tr.
248). On May 19, 2009, plaintiff stated that he was experiencing a little more pain and
discomfort and attributed these symptoms to skipping a month of treatment. During the
office visit, plaintiff underwent his sixth prolotherapy session. (Tr. 334).
On May 28, 2009, plaintiff returned to Meier Clinic and stated that he felt better,
was more calm, and had less panic. Dr. Guiley observed and noted that plaintiff was
more relaxed and not sad or anxious. (Tr. 319).
On July 13, 2009, plaintiff underwent a psychiatric/psychological exam at West
Park Medical Clinic, for which John S. Rabun, M.D., provided a report. The report
reflects that plaintiff told Dr. Rabun that he suffers from regular panic attacks that can
occur several times per week, but that he was doing “pretty good” in regards to his
depression. Dr. Rabun observed plaintiff as pleasant, cooperative, able to concentrate
on specific tasks with logical thought, fully alert and oriented, of average intelligence,
and without any current symptoms of depression. Dr. Rabun diagnosed plaintiff with
panic disorder, major depressive disorder in full remission, sacroiliac injury, and chronic
pain with a GAF of 50.14 Dr. Rabun reported that plaintiff “would have significant
difficulty focusing, concentrating, and remembering instructions, especially during and
after a panic attack” and that he would be “completely unable to interact appropriately
in a work-like setting during and after a panic attack.” (Tr. 291-293).
On July 16, 2009, plaintiff underwent his eighth prolotherapy session. Plaintiff
reported that he suffered some pain and discomfort in the past month, which he
attributed to having to work six days a week. Dr. Suthar noted that plaintiff “seemed
from a psychological standpoint to be managing his symptoms fairly well.” (Tr. 333).
On July 30, 2009, plaintiff returned to the Pain Prevention and Rehabilitation Center due
to a severe bout of SI joint pain. Dr. Suthar noted that plaintiff had a significant
displacement of the left SI joint, adjusted his medications accordingly, and referred
plaintiff to a physical therapist.15 (Tr. 332).
On August 13, 2009, plaintiff returned to Dr. Suthar for a one-month follow up.
Office notes indicate that plaintiff was not pain-free but was “remarkably better” and
that the physical therapy treatment had “reduced the dysfunction in his SI joint.” Dr.
Suthar recommended that plaintiff see the physical therapist on an as-needed basis,
that it would not be unreasonable to assume that plaintiff would have more
displacements in the future due to plaintiff’s line of work, and that the prolotherapy
sessions should be temporarily discontinued. (Tr. 331).
A GAF of 41-50 corresponds with “serious symptoms OR any serious
impairment in social, occupational, or school functioning.” American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 34 (4th ed. 2000).
The record does not include any reports of the physical therapist.
On August 14, 2009, Robert Cottone, Ph.D., performed a psychiatric review of
plaintiff who reported that plaintiff’s anxiety-related impairments were not severe. The
report indicated that plaintiff had mild restrictions of activities of daily living, mild
concentration, persistence, or pace, and no repeated episodes of decompensation. Dr.
Cottone specifically indicated that although panic was described as intense and
enduring, plaintiff was not agoraphobic and his function was nearly normal and
minimally impaired. (Tr. 294-305).
On September 9, 2009, plaintiff returned to Dr. Suthar. Plaintiff reported that he
continued to work with the physical therapist and could feel improvement each day. He
indicated that he was definitely better than he was the prior month and was interested
in decreasing his medication. (Tr. 330). On October 9, 2009, plaintiff reported to Dr.
Suthar that overall he was doing very well and that his pain seemed “to be at a steady
state.” (Tr. 329). On November 6, 2009, plaintiff told Dr. Suthar that his pain increased
“slightly” and requested another SI joint injection (Tr. 328). On December 4, 2009,
plaintiff indicated to Dr. Suthar that he was doing reasonably well. (Tr. 327). On
December 30, 2009, Dr. Suthar noted that plaintiff was “ stable” and that his “pain
[was] well controlled with his medication.” (Tr. 326).
On January 12, 2010, plaintiff returned to Meier Clinic after eight months. Plaintiff
told Dr. Guiley that the Paxil prescription had “done wonders.” Treatment notes show
that plaintiff had not suffered a panic attack in “months” with “no return of depressive”
symptoms and no racing thoughts. (Tr. 319).
On January 25, 2010, plaintiff saw Dr. Suthar for a follow-up appointment and
stated that he was going to the Super Bowl in Florida. Dr. Suthar found that plaintiff’s
back had “been managing well.” (Tr. 325). On February 22, 2010, plaintiff again
reported to Dr. Suthar that he was doing well. Plaintiff stated that he had had an
“episode” the prior week, but that it subsided after doing his exercises and stretches. Dr.
Suthar noted that plaintiff was eager to try to reduce or eliminate his medication. Dr.
Suthar encouraged plaintiff to reduce his medicine by one-half pill a week. (Tr. 324). On
August 31, 2010, plaintiff saw Dr. Suthar for another follow-up appointment. Office notes
indicate that plaintiff was doing about the same. Dr. Suthar reported that plaintiff was
more stable than he had been in years despite the impact that weather changes can
have on plaintiff’s symptoms. (Tr. 323).
D. Evidence Submitted to Appeals Counsel
In conjunction with his request for review, plaintiff submitted a Mental RFC
Assessment to the Appeals Council that was completed by Dr. Guiley on August 31,
2010. (Tr. 335-343); see Tr. 1-2 (acknowledgment by Appeals Council).
Dr. Guiley identified plaintiff’s diagnosis as panic disorder with agoraphobia and
chronic pain with a current GAF of 40.16 Dr. Guiley described plaintiff’s response to
treatment as “fair” with periods of remission. Dr. Guiley wrote that plaintiff’s
medications--Xanax XR and Remeron--could cause fatigue, drowsiness, cognitive
slowing, rebound symptoms when the medications wear off, and/or desensitization which
A GAF of 31-40 corresponds with “some impairment in reality testing or
communication . . . OR major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood.” American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 34
(4th ed. 2000).
would require higher doses of medication. Dr. Guiley described plaintiff as alert and
oriented with good eye contact, coherent speech, and goal-directed thoughts. Dr. Guiley
noted that plaintiff did not have suicidal or homicidal impulses, but that he had a
depressed mood. (Tr. 337).
The assessment form required Dr. Guiley to identify plaintiff’s signs and
symptoms. Dr. Guiley checked off the following: anhedonia or pervasive loss of interest
in almost all activities, appetite disturbance with weight change, decreased energy,
generalized persistent anxiety, mood disturbance, difficulty thinking or concentrating,
psychomotor agitation, persistent disturbances of mood or affect, apprehensive
expectation, emotional withdrawal or isolation, autonomic hyperactivity, sleep
disturbance, and recurrent severe panic attacks manifested by a sudden unpredictable
onset of intense apprehension, fear, terror, and sense of impending doom occurring on
the average of at least once a week. (Tr. 338).
In terms of abilities, Dr. Guiley opined that plaintiff was limited but satisfactory
in understanding, remembering, and carrying out very short and simple instructions,
remembering work-like procedures, sustaining an ordinary routine without special
supervision, responding appropriately to criticism from supervisors and changes in a
routine work setting, awareness of normal hazards, setting realistic goals or making
plans independently of others, and maintaining socially appropriate behavior. Dr. Guiley
indicated that plaintiff was seriously limited but not precluded from maintaining attention
for two hour segments, maintaining regular attendance and being punctual, working in
coordination with or proximity to others without being unduly distracted, making simple
work-related decisions, getting along with co-workers or peers, dealing with normal work
stress, carrying out detailed instructions, dealing with stress of work, interacting
appropriately with the general public, and traveling in unfamiliar places. Dr. Guiley
reported that plaintiff was unable to meet competitive standards in completing a normal
workday or workweek without interruptions from psychologically based symptoms and
in performing at a consistent pace without an unreasonable number and length of rest
periods. (Tr. 339-340).
Dr. Guiley further indicated that, on the average, he would anticipate that
plaintiff’s impairments or treatment would cause him to be absent from work about three
days per month. (Tr. 341).
III. The ALJ’s Decision
In the decision issued on July 30, 2010, the ALJ made the following findings:
Plaintiff meets the insured status requirements of the Social Security Act
through September 30, 2013.
Plaintiff has not engaged in substantial gainful activity since January 23,
2009, the alleged onset date.
Plaintiff has the following severe impairments: degenerative disc disease
of the lumbar spine, major depressive disorder, and a panic disorder.
Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b). He can lift/carry 20
pounds occasionally, ten pounds frequently, he can stand/walk six hours
out of eight and sit for six hours out of eight, he can occasionally stoop,
kneel, crouch or crawl, he can understand, remember, and carry out
simple instructions and non-detailed tasks, he can make simple workrelated decisions, he can take appropriate precautions to avoid hazards,
and he should not work in regular/constant contact with the general
Plaintiff is unable to perform any past relevant work.
Plaintiff was born on September 9, 1968 and was 40 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
Plaintiff has at least a high school education and is able to communicate
Transferability of job skills in not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the plaintiff is “not disabled,” whether or not the plaintiff has
transferable job skills.
Considering the plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the plaintiff can perform.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from January 23, 2009, through the date of this decision.
IV. Legal Standards
The district court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance, but
enough so that a reasonable mind might find it adequate to support the conclusion.”
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d
1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the court finds it possible
to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the court must affirm the decision of the
Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3)
his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942. If the
claimant does not suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s [RFC], which is the most
a claimant can do despite her limitations.” Moore, 572 F.3d at 523 (citing 20 C.F.R. §
“RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms, such
as pain, may cause physical or mental limitations or restrictions that may affect his or
her capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and others,
and an individual’s own description of his limitations.”
Moore, 572 F.3d at 523
(quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; (5) any functional restrictions; (6) the claimant’s work history; and (7) the
absence of objective medical evidence to support the claimant’s complaints.” Buckner
v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted). “Although
‘an ALJ may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them,’ the ALJ may find that these
allegations are not credible ‘if there are inconsistencies in the evidence as a whole.’” Id.
(quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After considering the
seven factors, the ALJ must make express credibility determinations and set forth the
inconsistencies in the record which caused the ALJ to reject the claimant’s complaints.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059
(8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to his past relevant
work, “review[ing] [the claimant’s] [RFC] and the physical and mental demands of the
work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The burden at step
four remains with the claimant to prove his RFC and establish that he cannot return to
his past relevant work. Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d
923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by his impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff contends that (1) the ALJ’s decision is not supported by substantial
evidence because the ALJ failed to point to some medical evidence to support the RFC
determination; (2) the Appeals Council did not provide a substantial evidentiary basis
for disregarding the new evidence submitted; and (3) because the RFC was not
appropriately determined, the hypothetical question presented to the vocational expert
was flawed, and as such, the expert’s testimony cannot be relied on by the ALJ.
Residual Functional Capacity Determination
The ALJ determined that plaintiff has the RFC to perform light work in that he can
lift and/or carry 20 pounds occasionally and 10 pounds frequently. He can stand and/or
walk 6 hours out of 8 and sit for 6 hours out of 8. He can occasionally climb ladders,
ropes, scaffolds, ramps or stairs, can occasionally stoop, kneel, crouch or crawl, can
understand, remember, and carry out simply instructions and non-detailed talks, can
make simple work-related decisions, can take appropriate precautions to avoid hazards,
but should not work in regular/constant contact with the general public. In making his
decision, the ALJ accorded little weight to the medical opinion of Dr. Ruban (Tr. 19).
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted); 20 C.F.R. § 404.1545(a)(1). It is the
claimant’s burden, rather than the Commissioner’s to prove the claimant’s RFC. Pearsall
v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). “The ALJ bears the primary
responsibility for determining a claimant’s RFC and because RFC is a medical question,
some medical evidence must support the determination of the claimant’s RFC.” Id.
(citation omitted). However, even though the RFC assessment draws from medical
sources for support, it is ultimately an administrative determination reserved to the
Commissioner. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§
416.927(e)(2), 416.946 (2006)); see also Dykes v. Apfel, 223 F.3d 665, 666 (8th Cir.
2000) (RFC is a determination based on all the record evidence, not only the medical
The Court finds that the ALJ’s decision is supported by some medical evidence.
The ALJ is not required to discuss every piece of evidence submitted, and the failure to
cite specific evidence does not indicate that such evidence was not considered. Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (citations omitted). See also Wheeler v. Apfel,
224 F.3d 891, 895 n 3 (8th Cir. 2000) (“That the ALJ did not attempt to describe the
entirety of [claimant’s] medical history does not support the [claimant’s] argument that
the ALJ disregarded certain aspects of the record.”). The ALJ expressly acknowledged
that the “medical evidence shows that the claimant has a history of treatment for back
pain, panic disorder, and depression.” (Tr. 15). Additionally, the ALJ’s decision included
several references to medical records authored by plaintiff’s treating physicians from
both Meier Clinic and the Pain Management and Rehabilitation Center.
The ALJ specifically noted that one of plaintiff’s treating physicians observed
plaintiff to be “more relaxed and not sad or anxious” and that plaintiff had reported that
the Paxil prescription “had done wonders” for his condition. (Tr. 16, 18). The ALJ
referenced plaintiff’s statements to Dr. Guiley that he had not had any panic attacks for
months and that there was no return of depressive symptoms. (Tr. 16, 18). The ALJ
further acknowledged plaintiff’s sacroiliac dysfunction and L5-S1 nerve root irritation
along with 2009 and 2010 treatment notes reflecting plaintiff’s increasing improvement
with pain management and therapy. (Tr. 15, 18-19).
The Court further finds that the ALJ’s RFC determination could reasonably be
drawn from the medical evidence and the record as a whole. The Eighth Circuit has held
that “[i]t is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others, and
claimant’s own descriptions of his limitations. Persall v. Massanari, 274 F.3d 122, 1217
(8th Cir. 2001). The plaintiff does not contest the ALJ’s determination of plaintiff’s
credibility, but does argue that the ALJ inappropriately gave little weight to Dr. Rabun’s
observations that were documented in a July 13, 2009 report.
The ALJ is entitled to dismiss or disregard evidence that he feels is inconsistent
with other evidence. Kelley v. Callahan, 133 F.3d 583 (8th Cir. 1998). A treating
physician's opinion is generally given deference over those of consulting physicians.
Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992); Henderson v. Sullivan, 930
F.2d 19, 21 (8th Cir.1991); See also Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998) (“The opinion of a consulting physician who examines a claimant once or not at
all does not generally constitute substantial evidence.”).
In making his decision to accord little weight to Dr. Rabun, a non-treating
physician, the ALJ referred to the February 2009, March 2009, April 2009, December
2009, and January 2010 medical treatment notes in the record to conclude that the
plaintiff’s “panic attacks are well controlled on medication and occur infrequently.” After
review of the medical record, the Court finds that the treatment notes made prior to Dr.
Rabun’s consultative examination do not reflect a significant limitation or restriction on
plaintiff’s ability to work, debilitating pain or distress, or panic attacks that occur several
times a week. In fact, Dr. Rubun’s opinion is the first and only indication in the medical
record of any significant limitation or restriction on plaintiff’s ability to work.
Specifically on March 22, 2010, Dr. Suthar, a treating physcian, indicated that
plaintiff’s symptoms were more stable than they had been in years. Also on March 22,
2010, plaintiff expressed interest in discontinuing his pain medications and stated that
exercising and stretching eased his pain. On January 25, 2010 plaintiff reported that he
was well enough to travel to Florida to go to the Super Bowl, and on January 12, 2010,
plaintiff returned after an eight-month hiatus from the Meier clinic in order to report that
the Paxil had “done wonders,” that he had no panic attacks for months, and no return
of depressive symptoms. Twice in the month of December 2009 plaintiff reported that
he was doing reasonably well and that his pain was well-controlled by his medication.
(Tr. 319, 223-330). This evidence is consistent with the ALJ’s finding that plaintiff
retained the RFC to perform light work.
New Evidence before the Appeals Council
Plaintiff submitted to the Appeals Council a “mental residual functional capacity
questionnaire” completed on August 31, 2010 by one of plaintiff’s treating physicians,
Dr. Guiley. (Tr. 337-342). The Appeals Council stated that it considered the additional
evidence and determined that this additional evidence was inconsistent with the record
as a whole. (Tr. 1-2). Plaintiff asserts that the Appeals Council “did not provide a
substantial evidentiary basis for discarding the opinion of the treating physician.”
The regulations provide that the Appeals Council must evaluate the entire record,
including any new and material evidence that relates to the period before the date of the
ALJ’s decision. 20 C.F.R. § 404.970(b); Cunningham v. Apfel, 222 F.3d 496, 500 (8th
Cir. 2000). The newly submitted evidence becomes part of the administrative record,
even though the evidence was not originally included in the ALJ’s record. Id. This Court
does not review the Appeals Council’s denial but determines whether the record as a
whole, including the new evidence, supports the ALJ’s determination. Id.
Generally, a treating physician’s opinion is given controlling weight if it is “well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence” on the record or not inconsistent with
the overall assessment of that particular physician. Teague v. Astrue, 638 F.3d 611, 615
(8th Cir. 2011) (quoting C.F.R. § 404.1526(d)(2)).
In the questionnaire, Dr. Guiley reported that plaintiff was unable to meet
competitive standards in his ability to complete a normal workday and workweek without
interruptions from psychologically-based symptoms and his ability to perform at a
consistent pace without an unreasonable number and length of rest periods. Dr. Guiley
also noted that plaintiff would be likely to miss about three days of work per month.
After review of the record, the Court finds that Dr. Guiley’s report is inconsistent
with his own treatment notes and the record as a whole for the relevant time period.
Nowhere in Dr. Guiley’s treatment notes does he mention that plaintiff was subject to
any specific limitations. Instead, as discussed earlier, Dr. Guiley had previously reported
a vast improvement in plaintiff’s mental state, level of depression, and frequency of
panic attacks, as well as a report from plaintiff that his medication had been “doing
wonders.” See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (impairments that
can be controlled through medication are not disabling). Although Dr. Guiley did note on
the questionnaire that plaintiff “has had periods of remission,” Dr. Guiley did not indicate
whether these “periods” occurred within the relevant time period being evaluated by the
Court. See Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007) ([V]ague, conclusory
statements” do require great weight, even if made by treating physicians); Lamp v.
Astrue, 531 F.3d 629, 632 (8th Cir. 2008) (the new evidence must relate to the time
period for which benefits were denied).
Additionally the questionnaire simply required Dr. Guiley to check a box for the
majority of his opinions, which further decreases the weight of this new evidence.
Holstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (“[T]he checklist format,
generality and incompleteness of the assessments limit their evidentiary value.”).
Accordingly, the Court finds that the record as a whole, including the new
evidence, supports the ALJ’s initial determination.
Vocational Expert’s Response to Hypothetical
In the final step of the disability analysis, the ALJ correctly relied upon the
testimony of Dr. Belchick, the vocational expert , in determining that, while plaintiff could
not perform his past work, he would be able to perform other available gainful activity.
“Testimony from a vocational expert is substantial evidence only when the testimony is
based on a correctly phrased hypothetical question that captures the concrete
consequences of a claimant’s deficiencies.” Cox v. Astrue, 495 F.3d 614, 620 (8th Cir.
2007). The hypothetical posed to the expert accurately reflected the RFC found by the
ALJ, which was supported by substantial evidence. Dr. Belchick testified that such an
individual would not be precluded from packager and assembler jobs that exist in the
national and local economy. This expert testimony constitued substantial evidence upon
which to base a denial of benefits.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED the relief sought by plaintiff in his complaint and his
brief in support of the complaint is denied.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of January, 2013.
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