Bryant v. Social Security Administration

Filing 19

MEMORANDUM OPINION: IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED. A separate judgment in accord with this Memorandum and Order is entered this date. Signed by Magistrate Judge Shirley P. Mensah on 2/13/2013. (RAK)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STORMI BRYANT
Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 4:12-CV-177-SPM

MEMORANDUM OPINION
This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision of
Defendant Michael J. Astrue, the Commissioner of Social Security, denying the application of
Plaintiff Stormi Bryant for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). Because I find the
decision denying benefits was supported by substantial evidence, I will affirm the
Commissioner’s denial of Plaintiff’s application.
FACTUAL BACKGROUND
Plaintiff is a single mother of two children, ages, 18 and 14. At the time of the hearing in
this case she was 42 years old. She completed the 12th grade, but was in special education
classes throughout school. Plaintiff injured her back in a car accident in 1999 and suffered an
injury to her right elbow in April 2004, for which she filed a claim for worker’s compensation.
However, she continued working after sustaining those injuries.
1 

Plaintiff last worked in August 2006 as a customer service representative for Medical
Transportation Management where she set up non-emergency medical transportation. According
to Plaintiff, she was laid off because she took vacation when she did not have enough vacation
days to do so. In her application for disability benefits, Plaintiff claimed she has been totally
disabled since September 1, 2007, due to back pain and right arm limitations.
PROCEDURAL HISTORY
On August 11, 2009, Plaintiff applied for DIB and SSI; that application was initially
denied. On December 7, 2009, Plaintiff filed a timely Request for Hearing by Administrative
Law Judge (ALJ). After a hearing on August 27, 2010, the ALJ issued an unfavorable decision.
Plaintiff filed a Request for Review of Hearing Decision with the Social Security
Administration’s Appeal’s Council on February 7, 2011, but the Council declined to review the
case on December 12, 2011.

Plaintiff has exhausted all administrative remedies, and the

decision of the ALJ stands as the final decision of the Commissioner of the Social Security
Administration.
LEGAL STANDARD
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 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

2 

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 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),

3 

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 significant number of jobs within the national
economy. Id.; Brock v. Astrue, 674 F.3d 1062, 1064 (8th Cir. 2012).
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ in this case found that Plaintiff had
the severe impairment of residual effects of right ulnar nerve transposition surgery performed on
March 5, 2004. The ALJ’s “severe impairment” finding did not include Plaintiff’s back, neck
and shoulder complaints. The ALJ further found Plaintiff had the RFC to perform “light work”
except that she is limited to using her hands for frequent (not constant) fine manipulation. The
ALJ assumed, without specifically finding, that Plaintiff could not return to her past relevant
work. Relying on the Medical-Vocational Guidelines (the “Grid”), the ALJ found that Plaintiff
was not disabled because given Plaintiff’s age, education, work experience and residual
functional capacity, there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform.
Plaintiff argues the ALJ’s decision is not supported by substantial evidence because (i)
the ALJ failed to properly consider all of Plaintiff’s impairments at Step Two; (ii) the ALJ failed

4 

to properly consider medical opinion evidence when determining Plaintiff’s RFC; and (iii) in
determining Plaintiff was not disabled at Step Five, the ALJ improperly relied on the Grid rather
than obtaining testimony from a vocational expert.
DISCUSSION
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
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).

5 

A. THE ALJ’S FAILURE TO INCLUDE BACK PAIN AS A SEVERE IMPAIRMENT
At Step Two of the disability analysis, the ALJ concluded that Plaintiff had the severe
impairment of “residual effects of right ulnar nerve transposition surgery performed on March 4,
2005.” Plaintiff argues that the ALJ erred in failing to properly consider chronic back pain,
caused by medically diagnosed spinal subluxations, muscle spasm, and leg-length discrepancy,
as a severe medically determinable impairment. See Pl.’s Br. 11-15.
To show that an impairment is severe, a claimant must show that she has (1) a medically
determinable impairment or combination of impairments, which (2) significantly limits her
physical or mental ability to perform basic work activities, without regard to age, education, or
work experience. See 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); 404.1521(a), 416.920(a)(4)(ii), (c);
416.921(a). “An impairment is not severe if it amounts only to a slight abnormality that would
not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). The requirement of severity is not an
“onerous requirement,” but it is also “not a toothless standard.” Id.
As Plaintiff’s brief correctly notes, the record facts in this case support a finding that
Plaintiff had medically determinable conditions causing back pain; however, I find the ALJ’s
conclusion that that Plaintiff’s back pain did not “significantly limit her physical or mental
ability to perform basic work activities” is supported by substantial evidence. A review of the
administrative record reveals that Plaintiff’s back problems originated with a car accident in
1999. She continued working for several years after the accident; and, although she initially
sought treatment for back pain at somewhat regular intervals between 1999 and 2004, the record
reflects that, after 2004, Plaintiff did not seek treatment for back pain until five years later in
September 2009, when she sought treatment for back pain and back spasms from the emergency

6 

department at St. Joseph’s Health Center in Wentzville. She next sought treatment for back pain
in July 2010 from Dr. Blake Anderson at Crider Health Center.1 Physical examination by Dr.
Blake in July 2010 revealed no abnormality of Plaintiff’s back and spine, although her spine was
positive for posterior tenderness, diffuse TTP of the lumbar through thoracic spine, and stiffness
with flexion and extension. Musculoskeletal examination revealed no cervical spine tenderness
and normal mobility and curvature. The diagnosis was chronic low back pain. Plaintiff was
prescribed 800 mgs of ibuprofen and Vicodin as needed for pain. An X-ray of her lumbar spine
taken on August 16, 2010 was “unremarkable,” and an MRI of her lumbar spine taken on
September 2, 2010, revealed “no significant abnormality.” Reviewing the record as a whole, the
ALJ’s decision to exclude Plaintiff’s back pain as a severe impairment fell within the zone of
choices available to the ALJ.
Even if, as Plaintiff contends, it was error for the ALJ to exclude Plaintiff’s chronic back
pain as a severe impairment, the error is harmless. Courts frequently find that, even if erroneous,
an ALJ’s failure to find a particular impairment severe does not require reversal where the ALJ
considers all of a claimant’s impairments, severe and non-severe, in his or her subsequent
analysis. See Spainhour v. Astrue, No. 11-1056-SSA-CV-W-MJW, 2012 WL 5362232, at *3
(W.D. Mo. Oct. 30, 2012) (“[E]ven if the ALJ erred in not finding plaintiff’s shoulder injury and
depression to be severe impairments at step 2, such error was harmless because the ALJ clearly
considered all of plaintiff’s limitations severe and nonsevere in determining plaintiff’s RFC.”);
Givans v. Astrue, No. 4:10-CV-417-CDP, 2012 WL 1060123, at *17 (E.D. Mo. March 29, 2012)
(holding that even if the ALJ erred in failing to find one of the plaintiff’s mental impairments to

1

 As discussed below, the administrative record reflects that, in addition to back pain, Plaintiff
sought treatment for other types of pain such as neck, shoulder and dental pain, and those issues
were considered by the ALJ in other parts of his decision. 

7 

be severe, the error was harmless because the ALJ found other severe impairments and
considered both those impairments and the plaintiff’s non-severe impairments when determining
Plaintiff’s RFC). See also 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“If you have more than
one impairment. We will consider all of your medically determinable impairments of which we
are aware, including your medically determinable impairments that are not ‘severe,’ as explained
in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity.”).
Here, the ALJ clearly considered all of Plaintiff’s limitations, including her back, neck
and shoulder pain, in his analysis after Step Two. As discussed in detail below, the ALJ
considered Plaintiff’s other conditions in determining the Plaintiff’s RFC and in his discussion
regarding his credibility determinations. Because the ALJ proceeded beyond Step Two of the
disability analysis and considered all of Plaintiff’s impairments, including her back, neck, and
shoulder pain, to the extent that the ALJ erred in failing to find Plaintiff’s back pain a severe
impairment, the error was harmless.
B. THE ALJ’S EVALUATION OF MEDICAL OPINION EVIDENCE
Plaintiff argues that Defendant’s decision is not supported by substantial evidence
because the ALJ failed to properly evaluate opinion evidence in making his RFC determination.
See Pl.’s Br. at 7-9. The evidence before the ALJ included opinions from two non-treating
physicians, Dr. Shawn Berkin and Dr. Alan Morris.
1. Dr. Shawn Berkin (2006 Medical Examination)
On March 22, 2006, Dr. Shawn Berkin performed an independent medical examination
of Plaintiff in connection with an on-the-job injury Plaintiff sustained to her right elbow in April
2004. In a report dated July 31, 2006, Dr. Berkin indicated that he reviewed Plaintiff’s medical
history, including records from Unity Corporate Health Services, Anthony Sudekum, MD,

8 

Daniel Phillips, MD, Devyani Hunt, MD, Richard Gelberman, MD, and David Peeples, MD. Dr.
Berkin also reported reviewing radiology reports from Open MRI of St. Louis, St. John’s Mercy
Medical Center and St. Charles Orthopedic Surgery MRI, a surgery report from Barnes-Jewish
Hospital, dated March 4, 2005 and Physical Therapy Records from Pro Rehab. None of the
aforementioned records were included in the record of the administrative proceedings this case.
According to Dr. Berkin’s report, those records reflected that Plaintiff was injured at
work in April 2004 when a trash container struck her right elbow. She was subsequently treated
for a contusion of the right elbow. After undergoing EMG and nerve conduction studies on
February 9, 2005, Plaintiff was diagnosed with cubital tunnel syndrome.2 On March 14, 2005,
Plaintiff was treated surgically with an anterior transposition of the ulnar nerve at the right elbow
and cubital tunnel release. After her surgery, Plaintiff was referred for physical therapy which
she attended at Pro Rehab. Plaintiff was later evaluated and her electrical studies repeated. In a
report dated August 2, 2005, EMG and nerve conduction studies were reported to be normal.
At the time of Dr. Berkin’s examination, Plaintiff was complaining of pain and
tenderness to her right arm and elbow and numbness to the fourth and fifth fingers of her right
hand. Dr. Berkin’s examination of Plaintiff, which included a test of grip strength and pinch
strength using the Jamar dynamometer and Jamar pinch gauge, revealed that Plaintiff had normal
grip strength in both hands.
Dr. Berkin concluded that, based on his examination of Plaintiff and review of her
medical records, Plaintiff suffered a 35% permanent partial disability of the right upper extremity

2

 Cubital tunnel syndrome is “a group of symptoms that develop from compression of the ulnar
nerve within the cubital tunnel at the elbow” and “can include paresthesia into the fourth and
fifth digits and weakness of some of the intrinsic muscles of the hand.” MediLexicon
International, http://www.medilexicon.com/medicaldictionary.php (citing Stedman’s Medical
Dictionary). 

9 

at the level of the elbow. Dr. Berkin went on to recommend that Plaintiff take certain measures
in order to “lessen her symptoms, preserve and maintain her overall level of function, and
prevent or delay any progression of her condition,” including using anti-inflammatory
medication to control right arm and elbow pain; participating in a home exercise program to
strengthen and improve the mobility and flexibility of her right arm and elbow; and avoiding
working with her elbow flexed for extended periods of time. He also recommended a 25-pound
lifting restriction from the floor to the waist and a 15 pound lifting restriction from the waist to
the level of the shoulder. In addition, he recommended that if Plaintiff were required to perform
hand-intensive activities for an extended period of time, she should have frequent breaks in order
to recover, to avoid exacerbation of her symptoms or further injury to her right arm and elbow.
2. Dr. Alan Morris (2010 Consultative Examination)
At the hearing before the ALJ, Plaintiff’s counsel requested a consultative examination
and explained that a consultative examination was desirable because “aside from the
transposition in her hand, [Plaintiff’s] issues are subjective complaints of pain that from the
record that I have seen right now, I don’t see an objective record to substantiate the issues . . . .”
(Tr. 32). The ALJ granted the request for a consultative examination and, on September 13,
2010, Plaintiff was examined by Alan Morris, MD.
Upon physical examination, Dr. Morris found Plaintiff could “walk 50 feet without a
cane” but “tends to walk with a stiffness in her low back and a slight limp favoring the right leg.”
He also found Plaintiff could “stand erect” and is “able to toe walk, heel walk and do a tandem
gait normally.” She can “squat to 120 degrees bilateral knee flexion. She is able to dress,
undress, get on and off the examination table, and arise from a chair independently.” He found a
“full range of elbow motion” despite hyper sensitivity on the medial aspect of the right elbow.

10 

Regarding her hands, Dr. Morris found Plaintiff could oppose the thumb to all fingers bilaterally
but her grip was very weak on the right at 2/5, with 5/5 strength on the left. He also found
decreased sensation to pinprick in the fifth finger but no atrophy. Her lower extremity deep
tendon reflexes were 2/4, and she had a positive straight leg raise. He found no muscle spasm in
either her lumbar or cervical spine. Based on his examination, Dr. Morris diagnosed ulnar nerve
transposition right elbow; low back pain, currently being evaluated with MRI, results pending;
and neck pain.
The same day, Dr. Morris completed a Medical Source Statement form (“MSS”) and
checked boxes indicating that Plaintiff could occasionally lift and carry up to 10 pounds with her
left arm but could lift no weight at all with her right arm. He estimated Plaintiff could sit, stand,
and walk for 15 minutes at a time, while over the course of an 8-hour workday she could sit for 4
hours, stand for 3 hours, and walk for 1 hour.

Dr. Morris estimated that Plaintiff could

occasionally reach overhead, handle, feel, and finger, but never perform other reaching or
push/pull with her right arm. With her left arm, Plaintiff could frequently handle, finger, feel,
and push/pull, occasionally reach overhead, but never perform any other reaching. Dr. Morris
indicated that Plaintiff could frequently operate foot controls, and that she could occasionally
climb stair and ramps, balance, stoop, kneel, crouch, and crawl, but never climb ladders or
scaffolds. He also opined that Plaintiff could occasionally be exposed to unprotected heights,
moving mechanical parts, and operate a motor vehicle. (Tr. 376-381).
3. The ALJ’s decision to give less weight to Dr. Morris’ opinions in the MSS is
supported by substantial evidence.
In determining Plaintiff’s RFC, the ALJ considered the opinions of both Dr. Berkin and
Dr. Morris, but noted that Dr. Morris’ assessment in the MSS “cannot be given significant
weight,” while Dr. Berkin’s functional description of Plaintiff’s right arm “deserves to be given
11 

more weight.” (Tr. 18). Plaintiff argues the case should be reversed and/or remanded because
the ALJ failed to adequately support his decision to give less weight to Dr. Morris’ opinion and,
as a result of that failure, the ALJ’s RFC determination is not supported by substantial evidence.
I disagree.
The ALJ took issue with Dr. Morris’ findings in the MSS on several fronts. First, the
ALJ found that Dr. Morris’ description of severe functional restrictions in the MSS was
inconsistent with Dr. Morris’ own findings on physical examination and inconsistent with the
record as a whole. (Tr. 18). It is well-established that even the opinion of a treating doctor,
which is generally entitled to controlling weight, can be given less weight if it is inconsistent
with or contrary to the medical evidence as a whole. Travis v. Astrue, 477 F.3d 1037, 1041 (8th
Cir. 2007); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (“A treating physician’s own
inconsistency may also undermine his opinion and diminish or eliminate the weight given his
opinions.”). See also Goetz v. Barnhart, No. 05-2267, 182 F. App’x 625, 625-26, 2006 WL
1512176, at *2 (8th Cir. June 2, 2006) (unpub. per curiam) (declining to give controlling weight
to the treating physician’s opinion because the treating physician’s notes were inconsistent with
her residual functional capacity assessment).
There is ample evidence to support the ALJ’s conclusion that Dr. Morris opinion in the
MSS is inconsistent with his own findings on physical examination and the record as a whole.
For example, Dr. Morris reported that his physical examination of Plaintiff revealed that she had
full 5/5 strength in her left hand; a full range of motion in her elbow; a level pelvis; and no
significant abnormalities in her spine; yet, in the MSS, Dr. Morris indicated that Plaintiff could
not lift more than 10 pounds in her left hand and was limited in reaching and handling in her left
hand. In addition, Plaintiff’s chief complaints to Dr. Morris were numbness in her right hand

12 

fingers and low back and neck pain. Yet the record shows Plaintiff sought very limited treatment
for those complaints during the relevant period. For example, Plaintiff sought and received
treatment for back pain from a chiropractor, Dr. Coogan, between October 1999 through April
2004. X-rays of her spine taken in 1999 revealed subluxation of C2 with “a no significant” shift
in weight bearing and a “marked reduction of the overall sagittal range of motion;”3 multiple
subluxations of the thoracic spine; and subluxation of the sacrum and L3.
After 2004, Plaintiff did not seek medical treatment for back, neck, or shoulder pain until
five years later in September 2009—two years after her alleged onset date—when she reported
an onset of muscle spasm in her back. At that time, she denied joint pain, and examination
revealed tenderness and muscle spasm in her left paralumbar area, but no other symptoms or
problems. On November 16, 2009, she complained of a one-week history of right sided neck
pain. She described the pain as “mild” and indicated that it did not limit her activities. Her gait
and motor strength were normal. She complained of an onset of shoulder pain on December 13,
2009, but she had normal range of motion, strength, and reflexes.
She next sought emergency room treatment on January 6, 2010, for shoulder pain
radiating through her neck and left hand. She told the examining physician, Dr. Glueck, that the
pain began in mid-November 2009, and she described subjective tenderness to palpation over her
left trapezius musculature, pain on range of motion of her shoulder, and decreased sensation in
her index finger and thumb. Dr. Glueck offered a shoulder injection, which Plaintiff refused, and
prescribed Motrin (ibuprofen) for pain.

X-ray examination of her cervical spine and left

shoulder were essentially normal with some “very mild” changes in the lower cervical spine with
relatively normal alignment.

3

Subluxation is defined in Stedman’s Medical Dictionary (28th ed.) as “an incomplete luxation
or dislocation; although a relationship is altered, contact between joint surfaces remains.”
13 

Plaintiff next sought treatment seven months later, on July 29, 2010, when she presented
to Crider Health Center with complaints of back spasms. At the time, she was taking ibuprofen
“every now and then” and Vicodin “rarely”. On examination, she had subjective posterior
tenderness over her spine with no spasm and negative straight leg raising. She had no cervical
spine tenderness, no motor weakness, and intact deep tendon reflexes. She was again prescribed
ibuprofen and instructed to use Vicodin as needed on a limited basis. An X-ray of her lumbar
spine taken on August 16, 2010 was “unremarkable,” and an MRI of the lumbar spine taken on
September 2, 2010, revealed “no significant abnormality.”
The minimal objective medical findings, Plaintiff’s limited treatment, and the
prescription of mild pain relievers such as ibuprofen, are at odds with Dr. Morris’s description of
Plaintiff as disabled by chronic back, neck, and elbow pain. The ALJ properly discounted Dr.
Morris’s opinion because it was inconsistent with his own findings and the record as a whole.
See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
The ALJ also indicated that Dr. Morris appeared to have simply accepted as true
Plaintiff’s description of her limitations, and the record supports that conclusion. For example,
during Dr. Morris’ physical examination, Plaintiff walked with a limp, but she had full muscle
strength in her legs and no muscle spasm or pathological reflexes suggesting a spinal
impairment. Unbeknownst to Dr. Morris, X-ray and MRI examinations of Plaintiff’s lumbar
spine, which he did not have at the time of his examination, confirmed there was no spinal
impairment; they too revealed “no significant abnormalities.” (Tr. 388-390). Indeed, Dr. Morris
wrote in his report that Plaintiff told him that she could only sit, stand or walk for 15 minutes at a
time before she had to stop. (Tr. 375). Dr. Morris then simply wrote this down on his Medical
Source Statement. As with a treating source, Dr. Morris’ opinion may be given less weight to

14 

the extent it is based on the claimant’s subjective complaints rather than medical evidence. See
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (“The ALJ was entitled to give less weight to
Dr. Harry’s opinion, because it was based largely on Kirby’s subjective complaints rather than
on objective medical evidence.”).
On the other hand, emphasizing the fact that Dr. Berkin performed objective testing, such
as the Jamar grip and Jamar pinch testing, the ALJ found Dr. Berkin’s report regarding the
functional description of Plaintiff’s right arm to be better supported by the medical evidence.
(Tr. 18). This conclusion is not unreasonable in light of the record as a whole. It is important to
note that although the ALJ did not afford controlling weight to Dr. Berkin’s opinion, the ALJ’s
RFC determination is generally consistent with, and supported by, Dr. Berkin’s opinion and the
medical evidence as a whole. For example, Dr. Berkin indicated that Plaintiff could lift a
maximum of 25 pounds with lifting of up to 15 pounds from waist to shoulder level. That is
generally consistent with the ALJ’s finding that Plaintiff could perform light exertional level
work, which requires lifting a maximum of 20 pounds and more frequent lifting of up to 10
pounds. See 20 C.F.R §§ 404.1567(b), 416.967(b). Dr. Berkin also indicated that Plaintiff
needed frequent rest breaks if she performed hand intensive activity for an extended period of
time. The ALJ appears to have accounted for Dr. Berkin’s suggestion of “frequent breaks” by
limiting Plaintiff to, at most frequent, rather than constant, fine manipulation with her hands.
Thus ALJ’s decision to limit Plaintiff’s use of her hands for fine manipulation to “frequent” hand
activity, and to exclude the rest breaks called for by Dr. Berkin, was reasonable.
C. THE ALJ’S RELIANCE ON THE MEDICAL-VOCATIONAL GUIDELINES
The ALJ found that Plaintiff is capable of engaging in “light work” per the Medical–
Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “Grid”), except that she

15 

is limited to using her hands for frequent (not constant) fine manipulation. Relying on the Grid,
at Step Five, the ALJ concluded Plaintiff was not disabled despite this limitation because
Plaintiff “retains the ability to use both hands frequently”; as such, “the additional limitations
have little or no effect on the occupational base of unskilled light work.” (Tr. 20).
Citing Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997), Plaintiff argues that the restriction
on fine manipulation is a non-exertional limitation that required the ALJ to obtain vocational
expert testimony rather than relying on the Grid to determine whether Plaintiff was disabled at
step five.

However, “‘an ALJ may use the [Grid] even though there is a nonexertional

impairment if the ALJ finds, and the record supports the finding, that the nonexertional
impairment does not diminish the claimant’s residual functional capacity to perform the full
range of activities listed in the [Grid].’” Lucy, 113 F.3d at 908 (quoting Thompson v. Bowen,
850 F.2d 346, 349 (8th Cir. 1988)); see also Evans v. Chater, 84 F.3d 1054, 1056 (8th Cir. 1996)
(“The [Grid] can be used to determine disability, provided that the nonexertional impairments do
not significantly diminish the claimant’s residual capacity to perform the activities listed in
them.”). See also Thompson v. Astrue, 226 F. App’x 617, 621 (8th Cir. 2007) (affirming the
ALJ’s use of the Grid even where the plaintiff had nonexertional impairments of pain and
obesity; noting that the ALJ had properly found that the claimant’s nonexertional impairments
did not diminish his work capacity and that sedentary work accommodated the claimant’s pain,
obesity, and postural limitations).
In this case, a limitation to no more than frequent fine manipulation is consistent with
light work as explained in SSR 83-10. That ruling provides that light exertional level jobs as
used in the Grid “generally do not require use of the fingers for fine activities to the extent
required in much sedentary work.” Thus, while a limitation to no constant fine manipulation

16 

would significantly erode the vocational base and prelude application of the Grid for sedentary
work, see SSR 96-9p, it does not preclude application of the Grid for light work. Social Security
Rulings are treated with deference by the court; where a reasonable interpretation of the statute is
offered, it is lawful. Barnhart v. Walton, 535 U.S. 212, 224 (2002). These Social Security
Rulings indicate that fine fingering is not a major component of light work, and thus does not
significantly diminish the pool of jobs available to Plaintiff. Therefore, assuming the ALJ
properly excluded any other non-exertional limitations, testimony from a vocational expert was
not required.
Citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991), and Evans v. Chater, 84 F.3d
1054, 1056 (8th Cir. 1996), Plaintiff further argues that vocational testimony would have been
warranted had the ALJ not erroneously evaluated opinion evidence in determining Plaintiff’s
RFC. The cases cited by Plaintiff prohibit reliance on the Grid if the record supports a finding
that Plaintiff has credible nonexertional limitations caused by pain. On the other hand, “if a
claimant’s subjective allegations of pain are appropriately discredited for legally sufficient
reasons, such as inconsistencies in the record evidence, the ALJ may employ the [Grid] to direct
a determination of not-disabled.” Cline, 939 F.2d at 565. Plaintiff’s argument that vocational
expert testimony was required implicitly challenges the ALJ’s credibility determination.
Before determining an applicant’s RFC, the ALJ must determine the applicant's
credibility, as his or her subjective complaints play a role in assessing his RFC. Pearsall v.
Massanari, 274 F.3d 1211, 1217-18 (8th Cir.2001). Applying the factors discussed in Polaski v.
Heckler, 739 F.2d 1320, 1322, the ALJ in this case found that Plaintiff was not fully credible
about the severity of her symptoms and limitations because (i) Plaintiff’s allegations of disability
were inconsistent with the objective medical evidence, which spanned many years; (ii) Plaintiff

17 

continued working after the two incidents that she claims are the source of her severe limitations;
(iii) the medical treatment records indicate that some of the conditions Plaintiff complains of
(i.e., shoulder and neck pain) are transient in nature; and (iv) Plaintiff’s inconstant work history
suggests lack of motivation to work. (Tr. 17-19).
While the ALJ may not discount Plaintiff’s complaints solely because they are not fully
supported by objective medical evidence, Plaintiff’s complaints may be discounted based on
inconsistencies in the record as a whole. Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). In
addition, “where adequately explained and supported, credibility findings are for the ALJ to
make.” Id. As detailed above, the evidence before the ALJ revealed that throughout the relevant
period, Plaintiff used primarily ibuprofen for pain relief and sought infrequent treatment for pain.
The objective medical evidence did not identify a basis for her complaints of disabling pain.
While Plaintiff may have experienced some pain from time to time, her sporadic treatment
strongly suggests that it was not so severe as to preclude her from performing light exertional
activity on a long-term basis. “The ALJ may properly consider both the claimant’s willingness
to submit to treatment and the type of medication prescribed in order to determine the sincerity
of the claimant’s allegations of pain.” Gray v. Apfel, 192 F.3d 799, 804 (8th Cir. 1999) (quoting
Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991)).
The record further reveals that Plaintiff continued working after her 1999 car accident to
which she attributes to chronic back pain, and that she continued working after the 2004 on-thejob injury to her right arm that is the basis of the ALJ’s severe impairment finding. The evidence
also establishes that Plaintiff did not stop working due to any of the conditions or limitations
alleged. Rather, Plaintiff told Dr. Morris, and testified at the hearing, that she stopped working
in August 2006, because she was “downsized” or laid off. The fact that a claimant left a job for

18 

reasons other than his medical condition is a proper consideration in assessing credibility. See
Medhaug v. Astrue, 578 F.3d 805, 816-17 (8th Cir. 2009) (“It was also relevant that Medhaug
did not leave his position as a laborer for an electric company . . . because of any back injury.
Medhaug was laid off from the position due to a decline in work, and Medhaug claimed the date
he was laid off was the same date of the alleged onset of disability.”) (citations omitted).
The evidence also establishes that when Plaintiff stopped working in August 2006, she
filed for unemployment benefits. A claimant who applies for unemployment compensation
benefits holds herself out as available, willing, and able to work. See Mo. Rev. Stat. § 288040(1)-(2) (2012). Because such an application necessarily indicates an ability to work, it is
evidence that weighs against an applicant’s claim that she was disabled.

See Jernigan v.

Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991).
It was also proper for the ALJ to consider the apparently transient nature of some of
Plaintiff’s conditions and Plaintiff’s work history in his credibility determination. The Eighth
Circuit has noted that “[a] lack of work history may indicate a lack of motivation to work rather
than a lack of ability.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (citing Woolf
v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993) (claimant’s credibility is lessened by a poor work
history)).
In sum, the ALJ adequately explained the inconsistencies upon which he relied to
discount Plaintiff’s subjective complaints. The ALJ determined the record only supported a
limitation that Plaintiff could not perform constant fine manipulation with her hands, and that
determination is supported by substantial evidence. Because the ALJ found, and the record
supports the finding, that Plaintiff’s limitation to frequent fine manipulation with her hands did

19 

not diminish her ability to perform light work, use of the Medical-Vocational Guidelines was
sufficient and the testimony of a vocational expert was not required.
CONCLUSION
For all of the foregoing reasons, the Court finds the ALJ’s decision is supported by
substantial evidence. Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is
AFFIRMED.
A separate judgment in accord with this Memorandum and Order is entered this date.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

Dated this 13th day of February, 2013.

20