Bauman v. Astrue

Filing 21

MEMORANDUM AND ORDER: For the reasons set forth above, the court finds that the decision of the ALJ is supported by substantial evidence in the record as a whole and consistent with the Regulations and applicable law. The decision of the Acting Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 3/18/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERESA BAUMAN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,

Defendant.

No. 4:12 CV 233 DDN

MEMORANDUM
This action is before the court for judicial review of the final
decision

of

application

defendant
of

Commissioner

plaintiff

Teresa

of

Social

Bauman

for

Security

denying

disability

the

insurance

benefits under Title II of the Social Security Act, 42 U.S.C. § 401,
et seq. and for social security income under Title XVI, 42 U.S.C. §
1381,

et seq.

The parties have consented to the exercise of plenary

authority by the undersigned United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c).

For the reasons set forth below, the court

affirms the decision of the Administrative Law Judge (ALJ).

I. BACKGROUND
On November 3, 2008, plaintiff filed her applications, alleging
she became disabled on October 9, 2008, when she was 39 years old.
(Tr. 77-81.)

She alleged disability due to complex multiple fractures

in her hip and leg, retraumatization of a past neck injury, two bone
fusions, bulging discs, chronic pain, a collapsed lung, pending lung
removal surgery, arthritic hands, and respiratory failure.

(Tr. 108.)

Her claims were denied initially and after a hearing before an ALJ.
(Tr.

1

12-21,

22A-22B,

27-32.)

On

December

15,

2011,

the

Appeals

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner
of Social Security.
The court hereby substitutes Carolyn W. Colvin as
defendant in her official capacity. F.R.Civ.P. 25(d).

Council denied plaintiff's request for review.

(Tr. 1-4A.)

Thus, the

decision of the ALJ stands as the final decision of the Commissioner.

II. MEDICAL AND OTHER HISTORY
Plaintiff was treated by Daniel P. Windsor, M.D., from September
2007 through June 2008 for opiate addiction and chronic pain.

(Tr. 318

-29.)
Plaintiff saw Kenneth R. Killian, M.D., on April 3, 2008, for
migraine headache management, back discomfort, and mood problems.

She

had been using crack cocaine and had been in a drug recovery home for
over one month.
dizziness,

a

She complained of fatigue, jerking spells, hair loss,

vibration

sensation

over

her

chest,

discomfort, swelling in her hands, and stress.

headaches,

neck

She was diagnosed with

irregular menstrual cycle, headache, backache, and contributing stress.
She was encouraged to cease her drug use and to quit smoking.

Dr.

Killian prescribed Lexapro, an antidepressant. (Tr. 586-87.)
Plaintiff was involved in a head-on motor vehicle collision on
October 9, 2008.
St.

Johns

She was treated in the Intensive Care Unit (ICU) at

Mercy

Medical

Center

and

diagnosed

with

right

hip

dislocation, a right acetabular (hip socket) fracture, right patellar
(knee) fracture, and rib fractures.

Her past surgical history included

fracture of her cervical spine and was status post fusion.

She had a

staph infection in her ear at the time of admission and was taking an
antibiotic.

She was instructed to be non-weight bearing with rest and

would require surgery.

She was an IV drug user.

out of ICU, she remained hospitalized.

She participated in therapy and

required a significant amount of assistance.
On

October

20,

2008,

plaintiff

(Tr. 151-152.)

underwent

internal fixation1 (ORIF) of the right knee.

1

After transferring

open

reduction

with

On November 17, 2008, she

An open reduction and internal fixation (ORIF) is a type of surgery
used to fix broken bones. It is a two-part surgery. First, the broken
bone is reduced or put back into place.
Next, an internal fixation
device is placed on the bone; this can be screws, plates, rods, or pins
-2-

underwent

ORIF

of

the

right

hip

socket

fracture.

Tests

evidence of deep vein thrombosis of either lower extremity.
discharged from the hospital on November 21, 2008.

showed

no

She was

(Tr. 149, 170-174,

244, 272-279.)
Plaintiff

was

seen

at

St.

Johns

complaints of right knee swelling.
and was prescribed medication.

on

November

26,

2008

with

She had run out of pain medication

(Tr. 304-14.)

Chest x-rays dated December 11, 2008 revealed hyperinflated lungs
with severe emphysematous changes in the upper lobes.

There was small

air fluid level in the left apex, which could represent fluid and gas in
the pleural cavity.

(Tr. 333.)

On December 18, 2008, a psychiatric review technique was performed
by Kyle DeVore, Ph.D..

He concluded that plaintiff had a substance

addiction (opiate) disorder which he described as a non-severe mental
impairment.

He opined that plaintiff had mild degree of limitation in

restriction of activities of daily living, and that she had no other
functional limitations.
On

December

19,

(Tr. 335-45.)
2008,

two

months

after

doctor stated she was doing "remarkably well."

her

car

was

seen

for

follow-up

on

her

She was walking with a

walker without any weight on her right lower extremity.
Plaintiff

accident,

(Tr. 349).

January

13,

2009

and

complained of swelling in her right lower extremity and pain in her
knee.

She stated that pain wakes her up at night.

She was instructed

to begin physical therapy, to bear weight as tolerated using a walker,
and to follow-up in 6 weeks.
normal healing.

X-rays of her right knee and pelvis showed

(Tr. 354-55, 369.)

On January 22, 2009, Donald Pfleger performed a Physical Residual
Functional

Capacity

indicated

that

(RFC)

given

assessment

plaintiff’s

on

behalf

recent

of

healing

the

Agency.

and

He

continued

used to hold the broken bone together. This surgery is done to repair
fractures that would not heal correctly with casting or splinting alone.
http://www.bidmc.org/Your
Health/Medical
Procedures
(last
visited
December 12, 2012).

-3-

improvement, his RFC assessment was “projected” for October 9, 2009, at
which time plaintiff should be capable of the following limitations.
Plaintiff would be capable of occasionally and frequently lifting 10
pounds, sitting about 6 hours in an 8-hour work day, and standing and/or
walking

at

plaintiff

least
could

2

hours

perform

in

an

8-hour

postural

workday.

activities

He

believed

occasionally,

never balance or climb ladders, ropes, or scaffolds.

but

that
could

(Tr. 358-63.)

X-rays of plaintiff’s pelvis and right knee taken March 5, 2009
revealed that her fractures were healing.

(Tr. 378.)

During an April

7, 2009 follow-up, six months after her accident, plaintiff reported
right hip and knee pain.

She had no tenderness and equal range of

motion (ROM) in her joints.

X-rays showed that her fractures were

healed and that she had no hardware damage.
prescription for physical therapy.

She was given another

She had been attending physical

therapy only one day per week for the past six weeks because she did not
have

transportation.

She

was

instructed

continuing ROM and strengthening exercises.

as

to

the

importance

of

(Tr. 384-86.)

During a June 9, 2009 appointment, plaintiff complained that the
hardware in her knee was causing her pain in her right knee and that at
times she had right hip pain with activity.
outside the home.

She used a cane when

June 22, 2009 x-rays showed a normally healed pelvis

with satisfactory alignment and healing of her fractures.

She was

scheduled for surgery in two weeks to remove the hardware from her right
knee.

(Tr. 392-94.)
On September 11, 2009, plaintiff was admitted to the Center for

Life

Solutions

in

heroin addiction.

Hazelwood,

Missouri,

for

methadone

treatment

for

She admitted to a past history of heroin and other

drug use, as well as using cocaine the day before.

She reported that

she started smoking cigarettes at an early age and currently smoked one
pack per day.

She also admitted to relapsing with pain pills and

reported she had been in and out of drug treatment centers for a number
of years and had taken methadone in the past.

-4-

(Tr. 521-26.)

On

October

22,

2009,

plaintiff

was

seen

at

St.

John’s

Mercy

Medical Center for right knee pain and surgical removal of the hardware
in her knee.

Notes state that she was initially scheduled to have the

hardware removed, but due to personal reasons was unable to have it
done.

Upon exam, she had a passive full ROM.

on extension of her knee.

She had significant pain

She had no pain with flexion.

mild arthritic changes in her right hip.
hardware removed on a future date.

She had some

The plan was to have the

(Tr. 401-02.)

On November 9, 2009 plaintiff was seen in the emergency room (ER)
of St. John’s Mercy Hospital for a fall that had occurred one week
earlier.

The circumstances of the fall were not known, except that she

had fallen from a standing position.
taking

methadone

and

oxycodone

for

Notes state that plaintiff was
pain.

Examination

revealed

tenderness in the sacral area and a quarter-sized hematoma on her right
hip.

She

hematoma.
On

was

diagnosed

with

a

fall,

contusion

of

buttocks,

and

(Tr. 408-19.)
November

18,

successfully removed.

2009,

the

hardware

(Tr. 402, 423.)

in

plaintiff’s

knee

was

The next day she was seen in the

ER of St. John’s Mercy for right knee pain and injury.

She reported

that the hardware in her knee had been removed earlier that week and
that she had fallen out of bed several hours earlier and twisted her
knee.

Upon examination, she had tenderness but normal ROM.

neurovascularly intact.

She was

One staple in her knee appeared to be altered.

(Tr. 469-83.)
Plaintiff was seen November 25, 2009 for fever and myalgia or
aches attributed to an abscess caused by IV drug injections in her right
hand.

She had normal strength and reflexes.

she was discharged.
In

December

The abscess was lanced and

(Tr. 493-500.)
2009

plaintiff

was

treated

Treatment Centers for drug abuse. (Tr. 531-538.)

Testimony at the Hearing

-5-

at

St.

Louis

Metro

On

January

29,

2010,

plaintiff

appeared

and

testified

to

the

following at a hearing before an ALJ.

(Tr. 603-40.) She is separated

and has two children, ages 17 and 18.

She lives in a ranch home with

her parents.

(Tr. 603-13.)

She began using heroin at age 27 and used for five years until she
quit in 2002.

She relapsed in June 2009 and used heroin until she quit

again on November 2, 2009.
Anonymous 12-step program.

She is on Step Four in the Narcotics

(Tr. 623-25.)

Her right knee hurts all of the time.

She drops things constantly

because her hands go numb three to four times per day.

She can stand

using a cane for about 20 minutes before her hip or knee starts to
cramp.

Her knee swells often, approximately a couple of days per week.

She uses a heating pad for swelling.

She has difficulty sleeping.

She

sleeps about two hours before pain wakes her up, at which time she must
stand up to put pressure on her leg until the pain is relieved. She has
hepatitis C which causes fatigue.

She has difficulty lifting objects.

She is prevented from performing a seated job because of cramping in her
legs.

She cannot stay in one position for very long, and once or twice

a week she must stay in bed all day because her leg hurts in a burning
way.

Her hip also hurts because it is arthritic.

15-20 feet before needing to stop.
time.

She can walk about

Taking a shower takes her a long

Her mother drives her to the treatment clinic. She tries to help

with household chores but cannot do much.
getting dressed.

She sometimes needs help

(Tr. 626-35.)

Vocational Expert (VE) Jeffrey Magrowksi also testified at the
hearing.

The ALJ asked the VE to assume a hypothetical of plaintiff’s

age, education, and work experience who was limited to sedentary work.
The individual was to refrain from jobs that require any kind of foot
control operation and from climbing ladders, ropes, or scaffolds, or
balancing.

She was limited to occasional climbing of ramps or stairs,

stooping, kneeling, crouching, and crawling.

The individual was to

avoid all moderate exposure to vibration, to operational control of
moving machinery, to working at unprotected heights, or exposure to
-6-

hazardous machinery.

The VE testified that plaintiff could perform her

past work as a telephone solicitor or telemarketer.
Under

a

second

hypothetical,

the

individual

had

the

same

limitations as the first, except that the individual would require a
sit/stand option once every hour.

Under a third hypothetical, the VE

was to assume the same limitations but would require a sit/stand option
every 30 minutes while remaining on task.

The VE testified that his

answer under both hypothetical questions would remain the same.
Under a fourth hypothetical, the VE assumed the same limitations
although the individual but would require a sit/stand option every 15
minutes and her right foot would need to be elevated during that time.
The VE testified that there were no jobs that the individual could
perform without accommodation under that hypothetical.

III.

DECISION OF THE ALJ

On April 14, 2010, the ALJ issued a decision that plaintiff was
not disabled.
performed

(Tr. 12-21.)

substantial

alleged onset date.
severe

impairments:

gainful

The ALJ found that plaintiff had not
activity

since

October

9,

2008,

The ALJ found that plaintiff had the following
residuals

from

an

open

reduction

and

internal

fixation of the right patella (knee cap) and acetabulum (hip).
14.)

her

(Tr.

The ALJ found that plaintiff’s GERD, headaches, and arthritis were

not severe.

(Tr. 15-16.)

The ALJ found that plaintiff did not have an

impairment or combination of impairments listed in or medically equal to
one contained in 20 C.F.R. part 404, subpart P, appendix 1.
15.)

The ALJ determined that plaintiff's (RFC):
preclude[d] prolonged standing and walking and
lifting and carrying more than ten pounds.
The
claimant cannot use foot controls. The claimant
cannot balance and climb ladders, ropes and
scaffolds. The claimant can only occasionally
climb ramps and stairs. The claimant can only
occasionally stoop, kneel, crouch or crawl. The
claimant
must
avoid
moderate
exposure
to
vibration and all exposure to operation control
of moving machinery.
The claimant must avoid
working at unprotected heights and working around
-7-

(Tr. 14-

hazardous machinery.
The claimant requires the
ability to alternate between seated and standing
positions every thirty minutes while remaining on
task.
(Tr. 15.)

The ALJ found that plaintiff's impairments would not preclude

her from performing work that exists in significant numbers in the
national economy, including work as a telemarketer.
ALJ found that plaintiff was not disabled.

IV.

Consequently, the

(Tr. 21.)

GENERAL LEGAL PRINCIPLES

The court’s role on judicial review of the Commissioner’s final
decision is to determine whether the Commissioner’s findings comply with
the relevant legal requirements and is supported by substantial evidence
in the record as a whole.
Cir.

2009).

Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th

“Substantial evidence is less than a preponderance, but is

enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.”
substantial,

the

court

Id.

In determining whether the evidence is

considers

evidence

detracts from the Commissioner's decision.

that

Id.

both

supports

and

As long as substantial

evidence supports the decision, the court may not reverse it merely
because substantial evidence exists in the record that would support a
contrary

outcome

differently.

or

because

the

court

would

have

decided

the

case

See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.

2002).
To be entitled to disability benefits, a claimant must prove she
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),

1382c(a)(3)(A); Pate-Fires, 564 F.3d 935, 942 (8th Cir. 2009).

A five-

step regulatory framework is used to determine whether an individual
qualifies for disability.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);

see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the
five-step process); Pate-Fires, 564 F.3d at 942 (same).
-8-

Steps One through Three require the claimant to prove (1) she is
not currently engaged in substantial gainful activity, (2) she suffers
from a severe impairment, and (3) her disability meets or equals a
listed impairment.

Pate-Fires, 564 F.3d at 942.

not

a

suffer

from

listed

impairment

or

If the claimant does
its

equivalent,

Commissioner’s analysis proceeds to Steps Four and Five.

Id.

the

Step Four

requires the Commissioner to consider whether the claimant retains the
RFC

to

perform

his

PRW.

Id.

The

claimant

bears

the

demonstrating she is no longer able to return to his PRW.

burden
Id.

of

If the

Commissioner determines the claimant cannot return to PRW, the burden
shifts to the Commissioner at Step Five to show the claimant retains the
RFC to perform other work.

Id.

V. DISCUSSION
Plaintiff argues the ALJ erred (1) in failing to cite any evidence
supporting

his

RFC

determination,

and

that

the

determination

was

ultimately conclusory because there was no discussion of her ability to
sit, stand, walk, lift, carry, push, or pull; and (2) in failing to
indicate what weight was given to the evidence, including the state
agency opinions.

1.

Residual Functional Capacity
Plaintiff

supporting

argues

his

RFC

that

the

ALJ

determination,

failed

and

to

that

the

cite

any

evidence

determination

was

ultimately conclusory because there was no discussion of her ability to
sit, stand, walk, lift, carry, push, or pull.

This court disagrees.

RFC is a medical question and the ALJ’s determination of RFC must
be

supported

by

substantial

evidence

in

the

record.

Hutsell

v.

Massanari, 259 F.3d 707, 711 (8th Cir. 2001); Lauer v. Apfel, 245 F.3d
700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
2000).

RFC is what a claimant can do despite her limitations, and it

must be determined on the basis of all relevant evidence, including
medical records, physician’s opinions, and a claimant’s description of
-9-

her limitations.

Donahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001);

20 C.F.R. § 416.945(a).

While the ALJ is not restricted to medical

evidence alone in evaluating RFC, the ALJ is required to consider at
least some evidence from a medical professional.
704.

Lauer, 245 F.3d at

An "RFC assessment must include a narrative discussion describing

how the evidence supports each conclusion, citing specific medical facts
(e.g.,

laboratory

findings)

activities, observations)."

and

nonmedical

evidence

(e.g.,

daily

SSR 96-8p, 1996 WL 374184, at * 7 (Soc.

Sec. Admin. July 2, 1996).
Here, the ALJ thoroughly discussed the medical evidence in his
decision.
for

He noted that other than plaintiff’s six-week hospitalization

injuries

from

her

October

2008

car

accident,

and

related

complications, the objective medical evidence did not support a finding
that plaintiff was unable to perform all work activity.

(Tr. 15-20.)

Two months after her accident, plaintiff was doing "remarkably well."
(Tr. 349.)
walker.

By January 2009, she was being weaned off the use of a

(Tr. 17, 354-55.)

normal healing.

X-rays of her right knee and pelvis showed

(Tr. 18, 369.)

She began physical therapy, and by

April 2009, six months after her injuries, she had no tenderness and
equal ROM in her joints.

(Tr. 18, 384.)

She stopped attending physical

therapy in April 2009, but returned for follow-up in June 2009.

(Tr.

381, 393-94.)
X-rays

at

that

time

showed

a

normally

healed

satisfactory alignment and healing of her fractures.
"Impairments

that

are

controllable

or

amenable

support a finding of total disability."
Barnhart,

342

F.3d

853,

855

(8th

Cir.

to

pelvis

with

(Tr. 18, 392.)
treatment

do

not

Pepper ex rel. Gardner v.
2003).

Plaintiff

developed

complications from the hardware in her knee and surgical removal of the
hardware was initially scheduled for June 2009.

(Tr. 394).

In the

meantime, in September 2009, plaintiff began methadone treatment for
heroin

addiction.

(Tr.

514-25.)

Plaintiff's

knee

eventually successfully removed on November 18, 2009.
423.)

hardware

was

(Tr. 18, 402,

The following day, plaintiff was seen in the ER reporting after
-10-

falling and twisting her knee.

On examination, she had tenderness but

normal ROM, she was neurovascularly intact, her staples were in place,
and there was no sign of infection.

X-rays showed no fracture and some

soft tissue swelling and knee joint effusion. (Tr. 471-74.)

Plaintiff

was seen one week later, on November 25, 2009, for fever and myalgia
caused by an abscess caused by intravenous drug injections in her right
hand.

(Tr. 493, 498.)

Plaintiff again had normal ROM and normal

strength, sensation, and reflexes.

(Tr. 496.)

In summary, the objective medical evidence shows that plaintiff's
hip and knee fractures had responded to treatment and that she had
regained full strength and ROM.

Such evidence is inconsistent with

plaintiff's reports of disabling symptoms.

See Buckner v. Astrue, 646

F.3d 549, 558 (8th Cir. 2011).
The burden is on plaintiff to establish disability.
Shalala, 45 F.3d 279, 282 (8th Cir. 1995).

See Roth v.

In this case, none of

plaintiff's physicians ever indicated that she had disabling functional
limitations, nor did any examining physician opine that plaintiff was
disabled or unable to perform any type of work.

See Young v. Apfel, 221

F.3d 1065, 1069 (8th Cir. 2000)(lack of significant restrictions imposed
by treating physicians supported the ALJ's decision of no disability).
The

ALJ

also

noted

that

when

plaintiff

started

her

treatment, she denied taking any prescription medications.
525.)

methadone
(Tr. 19,

Her failure to use any prescription pain medication at the same

time she alleges disability due to severe pain weighs against a finding
of disability.

See Baker v. Barnhart, 457 F.3d 882, 893 (8th Cir. 2006)

(claimant’s decision not to take pain medication was a valid factor for
the ALJ to consider).
The ALJ also found that plaintiff's work record weighed against
her credibility.
her

disability

earnings.

(Tr. 19.)
began,

(Tr. 19, 89.)

From 1997 through 2008, when she alleged

plaintiff

had

five

years

with

no

reported

She had another four years during this period

when her total earnings for the year amounted to less than $4,000.00.
(Tr. 19, 89.)

Cf. Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir.
-11-

2001)(lack of work history may indicate a lack of motivation to work
rather than a lack of ability); Woolf v. Shalala, 3 F.3d 1210, 1214 (8th
Cir. 1993) (claimant's credibility is lessened by poor work history).
Finally,
abuse.
case

the

ALJ

(Tr. 19.)

for

considered

plaintiff’s

long

history

of

drug

Plaintiff's drug addiction is relevant because her

disability

rests

subjective complaints.

in

large

part

on

the credibility

of

her

See Anderson v. Barnhart, 344 F.3d 809, 815 (8th

Cir. 2003)(claimant's misuse of medications is a valid factor in an
ALJ's credibility determinations); Anderson v. Shalala, 51 F.3d 777, 780
(8th Cir. 1995) (claimant's drug-seeking behavior further discredited
her allegations of disabling pain).
Based

on

the

evidence,

the

ALJ

determined

that

plaintiff's

subjective complaints were not credible, and that the credible record
evidence supported only the limitations of her RFC as set forth above.
Plaintiff points to no medical evidence that contradicts the ALJ's RFC
determination.

The record evidence showed that plaintiff's injuries

responded well to treatment and that she sought little treatment for any
other severe impairments during the relevant period.
Plaintiff

further

argues

that

the

ALJ

function-by-function assessment of her RFC.

failed

to

complete

a

However, the ALJ is not

required to provide each limitation in the RFC immediately followed by a
list of the specific evidence supporting this limitation.
Security Ruling (SSR) 96-8p.

See Social

As discussed above, the ALJ's decision

makes clear that he considered all of plaintiff's alleged impairments
thoroughly and in detail.

The ALJ properly formulated plaintiff's RFC

based on the credible evidence of record.
2010 WL 2953204 (W.D. Mo. 2010).

See e.g., Gifford v. Astrue,

Plaintiff's assertion that there is no

discussion of her ability to sit, stand, walk, lift, carry, push or pull
is contrary to the ALJ's RFC finding, which indicated that plaintiff
could lift, and thus implicitly carry, push, or pull 10 pounds.
15.)

The

ALJ

also

indicated

that

plaintiff

would

need

positions between sitting and standing every 30 minutes.

to

(Tr.
change

Thus, she

could sit and stand for 30 minutes at a time and for roughly 4 hours
-12-

each during the course of an 8-hour workday.

(Id.)

A more precise

articulation of her RFC was not necessary.

2.

Weight of the Evidence
Plaintiff next argues that the ALJ failed to state what weight he

afforded to the record evidence, including the medical opinion evidence.
As set forth above, in assessing plaintiff's RFC, the ALJ discussed a
number of factors, including objective medical findings, plaintiff's
treatment history, her ongoing substance abuse, her poor work history,
and the absence of any opinions from her treating sources that she was
incapable of working.

To the extent plaintiff is suggesting that the

ALJ is required to specify what weight is afforded to every piece of
record evidence, there is no requirement in the regulations or case law
that the ALJ do so; the regulations at 20 C.F.R. §§ 404.1527 and 416.927
apply only to medical opinions.

The record also shows that the ALJ

considered

agency

the

opinion

of

State

reviewing

psychologist

Kyle

DeVore, Ph.D., who opined that plaintiff did not have a severe mental
impairment.

(Tr. 335.)

The ALJ concluded, in light of Dr. DeVore's

opinion and the record as a whole, that plaintiff did not have a severe
impairment.

Thus, the ALJ afforded significant weight to Dr. DeVore's

opinion.
The only other opinion in the record was from a State agency
single decision maker, who, as a single decision maker, was not an
acceptable medical source, and therefore, his opinion was not afforded
any weight by the ALJ.

(Tr. 358-63.)

See Martise v. Astrue, 641 F.3d

909, 927 (8th Cir. 2011)(the ALJ is not required to adopt the opinion of
any medical source in determining RFC; ALJ is not required to rely
entirely

on

a

particular

physician's

opinion

or

choose

between

the

opinions [of] any of the claimant's physicians).
The record evidence demonstrates that plaintiff sustained serious
injury in a car accident, but made a successful recovery.

The objective

findings did not suggest any long-term disabling limitations.

Plaintiff

sought infrequent treatment after she was released from the hospital.
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Thereafter, she engaged in heroin and cocaine abuse, and also admitted
to

abusing

narcotic

pain

medication,

legitimacy of her complaints of pain.

calling

into

question

the

None of her physicians ever

opined that she had any long-term limitations.

The ALJ determined that

plaintiff was capable of performing a range of at least sedentary work
and that she could return to her past work as a telemarketer.

Based on

the above, the ALJ's decision is supported by substantial evidence.

3.

Severity of Plaintiff's Impairments.
Plaintiff

determining

argues

that

her

that

the

ALJ

migraines,

applied

the

arthritis,

wrong

standard

gastroesophageal

in

reflux

disease (GERD), depression, and neck pain were not severe impairments.
She argues that instead of using the correct standard, the ALJ discussed
why

plaintiff’s

impairments.

impairments

do

not

meet

one

of

the

listing

of

The court disagrees.

A severe impairment is an impairment or combination of impairments
that significantly limits a claimant's physical or mental ability to
perform basic work activities without regard to age, education, or work
experience.

An impairment is not severe if it amounts to only a “slight

abnormality” and does not significantly limit the claimant’s physical or
mental ability to do basic work activities.
705, 707 (8th Cir. 2007).

Kirby v. Astrue, 500 F.3d

Basic work activities encompass the abilities

and aptitudes necessary to perform most jobs.

Included are physical

functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; capacities for seeing, hearing, and
speaking;

understanding,

performing,

and

remembering

simple

instructions; using judgment; responding appropriately to supervision,
co-workers, and usual work situations; and dealing with changes in a
routine work situation.
The

ALJ

conditions,

noted

including

See 20 C.F.R. §§ 404.1521(b), 416.921(b).
that

plaintiff

headaches,

was

cervical

diagnosed
spine

with

injuries,

several
GERD,

arthritis, and depression, but that record evidence revealed no ongoing
treatment for any of these conditions.
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Nor were there any objective

findings supporting a finding that they were severe.

The ALJ also noted

that

for

plaintiff

did

not

receive

ongoing

treatment

any

of

these

conditions for at least 12 months, suggesting that they did not meet the
duration requirement of the Social Security Act.

The ALJ also noted

that the record evidence did not suggest that these impairments would
impose more than minimal work-related limitations.

Moreover, plaintiff

identified no such findings, simply contending that the ALJ improperly
applied

the

standard

for

determining

whether

an

impairment

meets

a

listing.
The

evidence

considered

for

the

Listings,

however,

is

also

considered at Steps Two and Four of the sequential evaluation process.
For example, with respect to arthritis, in order to find it a severe
impairment, the evidence would have to show medical signs and symptoms
such

as

inflammation,

changes.

limitation

of

motion,

or

degenerative

joint

Such evidence is also considered and evaluated under the

Listings, which set forth the specific medical findings necessary to
warrant

a

finding

of

evaluation process.
14.09.
spine

disability

at

Step

Three

of

the

sequential

See 20 C.F.R. Part 404, Subpart P, Appendix 1, §

The Listing can be satisfied if there is limited ROM of the
or

ambulate

persistent

inflammation

effectively.

considered

at

Steps

See
Two

that

id.

and

results

Thus,

Three.

in

the

inflammation
The

ALJ's

inability
and

ROM

observation

to
are

that

plaintiff's ROM was not significantly limited was a proper observation
in finding that her arthritis was not severe.

This did not amount to

the ALJ improperly applying an incorrect standard.
Plaintiff

also

argues,

alternatively,

that

the

ALJ

failed

to

account for her non-severe impairments in his RFC determination.

The

ALJ's

and

RFC

determination

need

only

limitations found credible by the ALJ.
892, 897 (8th Cir. 2004).

include

those

impairments

See Forte v. Barnhart, 377 F.3d

As set forth above, plaintiff received no

regular treatment for depression, arthritis, GERD, migraines, or neck
pain during the relevant period.

For this and other reasons, the ALJ

determined that plaintiff's subjective complaints were not credible.
-15-

Because

the

medical

evidence

did

not

suggest

any

significant

work-

related limitations due to these impairments, the ALJ was not required
to account for them in his RFC determination.

VI.

CONCLUSION

For the reasons set forth above, the court finds that the decision
of the ALJ is supported by substantial evidence in the record as a whole
and consistent with the Regulations and applicable law.

The decision of

the Acting Commissioner of Social Security is affirmed.

An appropriate

Judgment Order is issued herewith.

/S/
David D. Noce_______
UNITED STATES MAGISTRATE JUDGE

Signed on March 18, 2013.

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