Tabakovic v. Social Security Administration

Filing 26

MEMORANDUM - 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 is consistent with the applicable law. The decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 9/16/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
VISNJA TABAKOVIC,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social
Security,
Defendant.

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No. 4:12 CV 1122 DDN

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

of

defendant

Commissioner

of

Social

Security

denying

the

application of plaintiff Visnja Tabakovic for supplemental security
income under Title XVI of the Social Security Act, 42 U.S.C. § 1382.

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
Plaintiff, who was born in 1963, filed her SSI application on
September 24, 2009.

She alleged a March 31, 2004 onset date, due to

chronic neck, shoulder, and back pain; throat cancer; and eye and dental
problems. (Tr. 50-51, 150.) Her claims were denied initially, and after
a hearing before an ALJ.

(Tr. 56-60, 9-15.)

Appeals Council denied her request for review.

On April 16, 2012, the
(Tr. 1-3.)

Thus, the

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

1

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).

II. MEDICAL HISTORY
On April 1, 2008, plaintiff saw Yusuf Chaudhry, M.D., for joint pain
and

stiffness

in

the

small

joints

particularly at the end of the day.

of

her

hand,

and

for

fatigue,

Dr. Chaudhry diagnosed rheumatoid

arthritis and an acute upper respiratory infection.

(Tr. 191.)

Plaintiff was admitted to Jefferson Memorial Hospital under Dr.
Chaudhry April 14-15, 2008, for dizziness and headache, neck pain, nausea
and vomiting.

She was a pack-per-day smoker.

Plaintiff saw James D.

Gould, M.D., an otolaryngologist, for a consultation. His impression was
vertigo consistent with migraine, tinnitus (ringing in the ear), otalgia
(earache or ear pain), and an enlarged adenoid nasopharyngeal carcinoma.
Her

diagnoses

at

discharge

were

dizziness,

migraine

headache,

osteoarthritis, tobacco use, and nausea with vomiting. (Tr. 183-84, 27479, 466-67.)
On April 22, 2008, plaintiff saw Dr. Gould for follow-up for her
enlarged adenoid.
excluded

and

malignancy.

He opined that nasopharyngeal carcinoma could not be

ordered

an

audiogram

and

adenoidectomy

to

rule

out

(Tr. 185-86.)

On May 1, 2008, plaintiff saw Dr. Chaudhry again with complaints of
chronic

tension

and

migraine

headaches.

Dr.

Chaudhry

diagnosed

hypertrophy of the adenoids and headache and prescribed Esgic Plus, used
to treat tension headaches.

(Tr. 193.)

On May 21, 2008, plaintiff saw John F. Eisenbeis, M.D., at the St.
Louis University Department of Otolaryngology for the mass in her
nasopharynx.

Dr. Eisenbeis found mild septal deviation, changes in the

mucosa of the nose from smoking, and adenoid enlargement causing 80-90%
obstruction of the choana, or opening at the back of the nasal passage.
(Tr. 230.)
On June 3, 2008, plaintiff underwent an adenoidectomy or removal of
the adenoids under Dr. Eisenbeis at St. John's Mercy Hospital.

The

surgery was complicated by a moderate amount of bleeding and she remained
hospitalized for one night of observation.

(Tr. 213-16.)

On June 6, 2008, plaintiff was seen in the emergency room (ER) at
Jefferson

Memorial

Hospital

under

Dr.

Chaudhry

weakness, dizziness, and inability to swallow.
- 2 -

with

complaints

of

She was admitted and

discharged the following day.

Dr. Chaudhry’s impression of plaintiff’s

condition was blood loss anemia, dizziness, and dysphagia or difficulty
in swallowing.

(Tr. 238-68, 471-76.)

On June 10, 2008, plaintiff saw Dr. Chaudhry with complaints of
anxiety over the past few weeks, that she was not feeling well, weakness,
and dry mouth.

Dr. Chaudhry diagnosed dehydration and anxiety.

ordered blood work, Gatorade, and prescribed Ativan, for anxiety.

He
(Tr.

195-199, 201.)
On June 11, 2008, plaintiff saw Dr. Eisenbeis for follow-up on her
adenoidectomy. She had stopped taking her prescription pain medicine and
was now taking only Advil.

She was having difficulty swallowing with a

feeling of gagging and vomiting, and there was some nasal drainage into
the pharynx.

She was experiencing weakness, pain on her right side when

laying down, and looser stools while on the medicine.
noted that "for the most part" she was "doing fine."

Dr. Eisenbeis

(Tr. 224-25.)

During a July 16, 2008 follow-up visit to Dr. Eisenbeis, plaintiff
reported that her nose occasionally felt a little dry, but for the most
part she was doing fine.

Dr. Eisenbeis noted that she was “doing

beautifully” following surgery.

(Tr. 221-22.)

More than one year later, on October 16, 2009, plaintiff saw Dr.
Chaudhry for a check up and with complaints of myalgias or body aches.
Dr. Chaudhry’s assessments were arthritis and fibromyalgia.
her to Hamid Bashir, M.D. a rheumatologist.

He referred

(Tr. 304.)

Plaintiff saw Dr. Bashir on November 9, 2009.

He diagnosed

osteoarthritis and fibromyalgia. Plaintiff’s lab results were consistent
with fibromyalgia, negative for inflammatory arthritis, and showed a
Vitamin D deficiency.

(Tr. 296-98.)

On November 10, 2009, plaintiff saw Dr. Eisenbeis for follow-up on
her adenoidectomy.

He was very pleased with the results.

obvious clicking in the temporomandibular joint (TMJ).

She also had
Dr. Eisenbeis

instructed her to see a dentist and referred her to an oral surgeon.
(Tr. 333.)
On November 20, 2009, plaintiff saw Dr. Chaudhry for a check-up.
He diagnosed dehydration, anxiety, osteopenia, fibromyalgia, and TMJ
disorder.

Dr. Chaudhry prescribed Ativan, for anxiety; Fosamax Plus D,
- 3 -

for osteopenia; Motrin, for fibromyalgia; and Darvocet, an analgesic used
to treat mild pain.

(Tr. 306-07.)

Plaintiff saw Dr. Chaudhry on December 29, 2009 for an exam and to
complete SSI paperwork.

Although plaintiff complained of shoulder pain

of several weeks’ duration, Dr. Chaudhry reported no signs of shoulder
pain such as limited range of motion (ROM), swelling, or warmth.
primary diagnoses included dehydration and TMJ disorder.

His

His other

diagnoses were arthritis of the shoulder, anxiety, fibromyalgia, and
osteopenia or low bone density.

Dr. Chaudhry prescribed Naprosyn, for

dehydration; Celebrex, for arthritis; Ativan; Motrin; Fosamax Plus D;
Augmentin, for TMJ Disorder; and Darvocet.

(Tr. 482-83.)

Dr. Chaudhry completed a Physical Medical Source Statement (MSS),
listing

diagnoses

osteopenia.

of

fibromyalgia,

arthritis,

TMJ

disorder,

and

He opined that plaintiff could sit for 15-30 minutes, stand

60-90 minutes, and walk 60-90 minutes at one time without a break; could
sit 90 minutes or less, stand about 2 hours, and walk 90 minutes or less
in an eight-hour workday.

She could lift or carry 2 to 5 pounds

occasionally; stoop and reach over her head occasionally, and rarely
crouch, crawl, or climb ladders or scaffolds.

She could rarely tolerate

exposure to temperature or humidity extremes, and occasionally tolerate
exposure to odors or dust.

She had significant manipulative limitations

in both hands in gross handling of large objects, fine fingering of small
objects, and reduced grip strength or pain in gripping.

Dr. Chaudhry

opined that plaintiff had jaw, neck, and shoulder pain with muscle pain
all day on a daily basis.

He believed that plaintiff would need to lie

down or take a nap for 3 hours during an eight-hour workday and would
need to take breaks every 90 minutes due to neck pain.

(Tr. 310-13.)

On May 17, 2010, plaintiff saw Dr. Chaudhry for a cough and chest
congestion.

He diagnosed asthmatic bronchitis and cough and started her

on Augmentin, a penicillin antibiotic, and Robitussin.

(Tr. 484.)

On August 3, 2010, plaintiff saw Dr. Chaudhry for right ear pain
with a popping sensation, chronic nasal congestion, taste of blood in the
mouth, nocturnal heartburn, and drowsiness.

Dr. Chaudhry diagnosed

impacted cerumen or ear wax, acute upper respiratory infection, and GERD.
He started her on Augmentin; Mucinex, to loosen mucus; Debrox solution,
- 4 -

for ear wax removal; and Zantac, an acid reducer used to treat GERD.
(Tr. at 486-87.)
On September 14, 2010, plaintiff saw Dr. Eisenbeis, with complaints
of generalized malaise.
caused by allergies.

Dr. Eisenbeis thought her symptoms could be

He started her on an antihistamine and ordered a

complete blood count.

(Tr. 332.)

On March 4, 2011, plaintiff saw Dr. Chaudhry for a toothache and
gingival disease and prescribed Tylenol with codeine and penicillin.
(Tr. 335.)
Testimony at the Hearing
On April 7, 2011, plaintiff appeared and testified to the following
at a hearing before an ALJ.

(Tr. 20-48.)

three children, ages, 11, 14, and 15.

She lives with her husband and

She became a U.S. citizen in 2004

or 2005.

She earned a doctorate in veterinary science when she lived in

Bosnia.

She is unable to work because she has residual pain from her

adenoidectomy, as well as arthritis.

She cannot sit for long periods of

time and her legs hurt when she walks.
leg.

She has pain in her spine and

She cannot pick up more than four or five pounds.

to drive in Texas but does not own a car.

She is licensed

(Tr. 20-33, 42.)

She can stand for only 20 minutes before she feels drowsy and dizzy
and needs to sit.
get up.

She can sit for 30 or 40 minutes before she needs to

Her left side and shoulder hurt when she uses her left hand.

(Tr. 34-36.)
She gets up in the morning at about 6:00 or 6:30 a.m. and makes her
children a snack before their school bus arrives at 6:45 a.m.
inside and lays down, rests, and watches TV.

She comes

The extent of her food

preparation is heating food in the microwave.

Her children do the

grocery shopping and pick up after themselves around the house.
unable to vacuum or fold laundry.

She is

She can bathe herself, but keeps the

bathroom door open in case she falls. (Tr. 36-42.)
A vocational expert (VE) also testified to the following at the
administrative hearing.

She has no past relevant work (PRW).

Under the

first hypothetical, the individual could lift 20 pounds occasionally and
10 pounds frequently.

She could sit and stand for six hours in an eight- 5 -

hour workday and could occasionally lift overhead with her left upper
extremity.

The VE testified that under that hypothetical there were

light unskilled jobs that an individual of plaintiff’s age and education
could perform.

(Tr. 45.)

The second hypothetical was the same as the first except that the
individual would be unable to sustain an eight-hour work day.

The VE

testified that there were no jobs that would be available under that
hypothetical.

(Tr. 45.)

Under a third hypothetical asked by plaintiff’s attorney, the
hypothetical individual was able to sit for 90 minutes or less; stand
about two hours; walk 90 minutes or less in an eight-hour workday; lift
2 to 5 pounds; occasionally stoop and reach above her head; rarely
crouch, crawl, or climb ladders or scaffolds; rarely tolerate exposure
to

temperature

or

humidity

exposure to odors and dust.

extremes

and

withstand

only

occasional

The hypothetical individual would have

significant manipulative limitations in gross handling, fine fingering,
and reduced grip strength and would need to take a break every 90 minutes
due to pain.

The VE testified that there were no jobs that would be

available under that hypothetical.
III.

(Tr. 45.)

DECISION OF THE ALJ

On May 17, 2011, the ALJ issued a decision that plaintiff was not
disabled.

(Tr. 9-17.)

At Step One, the ALJ determined that plaintiff

had not engaged in substantial gainful activity since her September 24,
2009 application date.

(Tr. 10.)

At Step Two, the ALJ found that

plaintiff had the severe impairments of fibromyalgia and degenerative
disc disease of the cervical spine.

(Id.)

At Step Three, the ALJ found

that plaintiff did not suffer from an impairment or combination of
impairments of a severity that met or medically equaled the required
severity of a listed impairment.

(Tr. 12.)

Prior to Step Four, the ALJ determined that plaintiff had the
residual functional capacity (RFC) to perform “light” work with the
following restrictions: she could lift 20 pounds occasionally and 10
pounds frequently; sit or stand for 6 hours each in an 8-hour workday;
and perform only occasional reaching overhead with her left arm.
- 6 -

(Tr.

12.)

At Step Four, the ALJ found that plaintiff had no PRW.

(Tr. 14.)

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 cafeteria counter attendant, ticket taker,
and cashier.

(Tr. 15.)

Consequently, the ALJ found that plaintiff was

not disabled under the Act.
IV.

(Id.)

GENERAL LEGAL PRINCIPLES

The court’s role on judicial review of the Commissioner’s 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. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). “Substantial evidence is less than a preponderance, but is enough
that

a

reasonable

mind

would

Commissioner’s conclusion.”

find

Id.

it

adequate

to

support

the

In determining whether the evidence is

substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.

Id.

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 or because the court would have decided the case differently.
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); 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).
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.
- 7 -

If the claimant does not

suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five.

Id.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform
her PRW.

Id.

The claimant bears the burden of demonstrating she is no

longer able to return to her PRW.

Id.

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 evaluate her
credibility; (2) in failing to refer her for a psychological consultative
evaluation; and (3) in failing to give less than controlling weight to
the

opinion

of

her

treating

physician,

Dr.

Chaudhry.

The

court

disagrees.
1.

Credibility

Plaintiff argues that the ALJ erred in failing to evaluate her
credibility.

In his decision, the ALJ noted that the plaintiff alleged

disability due to a number of limitations including dizziness, swelling
and numbness of her legs, and neck pain, as well as an inability to sit
for more than 30 to 40 minutes at a time, lift more than 5 pounds, or
reach overhead. (Tr. 12.)

The ALJ then noted that "the medical record

contains a considerable number of findings upon clinical examination
inconsistent with a claim of inability to perform any sustained work
activity."

(Tr. 13.)

While the ALJ did not specifically use the term

"credibility," a full reading of his decision shows that he found that
plaintiff's complaints were not fully credible based on the factors set
forth in his decision and discussed below.

(Tr. 13-14.)

For example, despite plaintiff's allegations of chronic dizziness,
in

May

2008

plaintiff

told

her

physicians

"dramatically improved" on medication.

that

her

dizziness

(Tr. 13, 227.)

was

Plaintiff

underwent adenoid surgery in June 2008 and was "doing beautifully" by the
following month.

(Tr. 13, 221.)

In November 2009, plaintiff told Dr.

Eisenbeis that her dizziness was resolved following her June 2008
- 8 -

surgery, over one year before she applied for SSI benefits.
333.)

(Tr. 13,

See Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th

Cir. 2003) (impairments that are controllable or amenable to treatment
do not support a finding of total disability).

Moreover, a claimant's

response to treatment is a factor in evaluating credibility.

See 20

C.F.R. § 416.929(c)(3)(v). The ALJ properly considered these credibility
factors in reaching his decision. (Tr. 13.)
The ALJ also noted that despite complaints of disabling pain,
plaintiff received only conservative treatment.

(Tr. 13.)

Although

plaintiff complained of severe neck and leg pain, the record evidence
demonstrates only minimal conservative treatment consisting of one or two
physical therapy appointments and a course of cervical traction.
26-27, 344, 348.)

(Tr.

At the time of her application, plaintiff was taking

only naproxen, an over-the-counter pain reliever. (Tr. 154.) See Gowell
v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (pattern of conservative
medical treatment is a proper factor for ALJ to consider in evaluating
credibility).

See also Rankin v. Apfel, 195 F.3d 427, 429 (8th Cir.

1999)(claimant’s decision not to attend physical therapy more often, as
well as the results of the physical therapy administered, undercut
allegations of disabling pain).
The ALJ also noted that the record evidence was inconsistent with
plaintiff's allegations of disabling neck pain and difficulty reaching.
(Tr. 13.) Throughout the relevant period plaintiff had normal ROM in her
spine and upper extremities.

(Tr. 13, 191, 193, 195, 304, 306, 335.)

In December 2009, although plaintiff complained of shoulder pain of
several weeks duration, Dr. Chaudhry reported no signs of shoulder pain
such as limited ROM, swelling, or warmth.

(Tr. 482-83.)

Nor was there

any mention of shoulder pain in his subsequent treatment note dated May
2010,

five

months

later.

(Tr.

484.)

While

x-rays

and

MRIs

of

plaintiff's cervical spine revealed some degenerative disc disease, which
the ALJ acknowledged as a severe impairment, there was no evidence of
radiculopathy or inflammation of the nerves.

(Tr. 12, 357, 389.)

See

Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004)(ALJ may not discount
allegations of disabling pain solely on the lack of objective medical
evidence, but a lack of objective medical evidence is a factor an ALJ may
- 9 -

consider in determining a claimant's credibility).

Here, in support

of his RFC determination, the ALJ noted the lack of supporting record
evidence, plaintiff's history of minimal conservative treatment, and her
statements that her impairments improved with treatment.

In doing so,

the ALJ implicitly found that plaintiff's subjective complaints were not
entirely credible to the degree that they exceeded the limitations in his
RFC determination.
(implicit

See Mapes v. Chater, 82 F.3d 259 (8th Cir. 1996)

determinations

of

credibility

are

adequate

when

ALJ's

conclusion is supported by substantial evidence). Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996) (ALJ did not specifically outline reasons
for rejecting testimony, but clear from record that ALJ made certain
implicit determinations regarding credibility).
The credibility of a claimant's subjective testimony is primarily
for the ALJ to decide, not the court.
F.3d 1211, 1218 (8th Cir. 2001).

See Pearsall v. Massanari, 274

If the ALJ discounts a claimant's

credibility and gives good reasons for doing so, the court will defer to
the ALJ’s judgment even if every relevant factor is not discussed in
depth.

See Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996).

Because

the ALJ here articulated the inconsistencies on which he relied in
discrediting plaintiff’s testimony regarding her subjective complaints,
and because the credibility finding is supported by substantial evidence
on the record as a whole, the ALJ's credibility finding is affirmed. See
Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996).
2.

Consultative Exam

Plaintiff next argues that the ALJ erred in failing to refer her for
a consultative psychological examination.

In support, she cites a 2004

ER visit for a panic attack, physician statements dated July 22, 2005,
and May 31, 2006, indicating disabling "psychosis" and generalized
anxiety disorder (GAD), anxiety diagnoses under Dr. Chaudhry in 2008 and
2009, and her prescription for Ativan, used to treat anxiety.
Plaintiff cites evidence from 2004 through 2006. However, plaintiff
did not apply for SSI benefits until September 24, 2009.

For purposes

of eligibility for SSI, the issue is whether plaintiff was disabled as
of the date of her application, not her alleged onset date.
- 10 -

See 42

U.S.C.

§

1382(c);

20

C.F.R.

§§

416.330

and

416.335.

Therefore,

plaintiff’s condition during the years before she applied for benefits
is of very limited relevance.

Moreover, the record evidence from this

period does not show consistent psychiatric treatment, and in fact, does
not show that plaintiff ever sought treatment from a mental health
professional.

See Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir.

2000)(absence of any evidence of ongoing counseling or psychiatric
treatment or of deterioration or change in claimant’s mental capabilities
disfavors a finding of disability).

The mere fact that a claimant has

been prescribed anti-anxiety medication on at least one occasion is not
enough to require the ALJ to inquire further into the condition by
ordering a psychological evaluation.

Cf. Hensley v. Barnhart, 352 F.3d

353, 357 (8th Cir. 2003)(anti-depression medication).
Further, neither plaintiff nor counsel addressed her anxiety at the
administrative hearing.

Nor did plaintiff allege anxiety as a disabling

impairment at the time of her application.
Astrue,

545

F.3d

634,

639

(8th

Cir.

(Tr. 150.)

2008)(ALJ

is

See Mouser v.
not

obliged

to

investigate claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability);

20

C.F.R. § 416.912(a) (2012) ("We will consider impairment(s) you say you
have or about which we receive evidence").
Finally, the record evidence does not reveal ongoing severe anxiety.
Dr. Chaudhry consistently noted that plaintiff reported no anxiety or
depression.

(Tr. 191-94, 304-07, 335-36, 484-87.)

On June 10, 2008,

plaintiff saw Dr. Chaudhry with complaints of anxiety and was prescribed
Ativan.

(Tr. 195.)

Plaintiff did not see Dr. Chaudhry again until a

followup visit on November 20, 2009, over one year later, and no specific
complaint of anxiety was noted.

(Tr. 13, 306-07.) On December 29, 2009,

when plaintiff saw Dr. Chaudhry to complete disability paperwork, Dr.
Chaudhry diagnosed anxiety, but did not document any complaints of
anxiety in his records.

(Tr. 482.)

There was no further reference to

anxiety in his subsequent notes from 2010 and 2011. (Tr. 335, 484, 486.)
Based on all

of

the

above, the ALJ was not required to order a

consultative psychiatric examination.

- 11 -

3.

Opinion of Treating Physician, Dr. Chaudhry

Plaintiff finally argues that the ALJ erred in giving less than
controlling weight to Dr. Chaudhry’s December 29, 2009 Medical Source
Statement (MSS).

(Tr. 310-13.)

On his MSS, Dr. Chaudhry listed

diagnoses of fibromyalgia, arthritis, TMJ disorder, and osteopenia.

He

opined that plaintiff could sit for 15 to 30 minutes and stand and walk
for 60 to 90 minutes at a time.

He estimated that over the course of an

eight-hour workday, plaintiff could only sit for 90 minutes, stand for
2 hours, and walk for 90 minutes.

Dr. Chaudhry indicated that plaintiff

could occasionally lift and carry 2 to 5 pounds;

never lift or carry 10

pounds; occasionally stop and reach above her head; and never crouch,
crawl, or climb ladders or scaffolds.

He opined that plaintiff needed

to lie down for 3 hours during an eight-hour
breaks every 90 minutes due to neck pain.

workday and needed to take

(Tr. 310-13.)

An ALJ must give a treating physician's opinion controlling weight
if it is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial
evidence in the record.

See Brace v. Astrue, 578 F.3d 882, 885 (8th Cir.

2009)(citing 20 C.F.R. § 416.927(c)(2)).

If the opinion fails to meet

these criteria; however, the ALJ need not accept it.

Brace, 578 F.3d at

885.
Here, while the ALJ acknowledged that Dr. Chaudhry was a treating
source, he determined that there were reasons his opinion could not be
afforded substantial weight.

The ALJ noted that there was insufficient

evidence in Dr. Chaudhry's treatment notes to support the limitations
described on his MSS. Despite indicating that plaintiff could never lift
more than two to five pounds, Dr. Chaudhry never documented any motor
strength

deficits.

Dr.

Chaudry

also

opined

that

plaintiff

had

significant postural limitations, yet his examinations uniformly revealed
intact ROM of her cervical and lumbar spine.

(Tr. 13, 191, 193, 195,

304, 306-07, 311, 335, 482, 484.)
The ALJ properly determined that Dr. Chaudhry’s opinion was not
entitled to significant weight because it was inconsistent with and
unsupported

by

treatment notes.

the

record

evidence,

including

Dr.

Chaudhry’s

own

See Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir.
- 12 -

2010)(where the doctor's opinion is inconsistent with or contrary to the
medical evidence as a whole, the ALJ can accord it less weight).

The ALJ

also noted that plaintiff's treatment history with Dr. Chaudhry detracted
from the weight afforded to his opinion. As noted above, during 2008 and
2009, plaintiff went over one year between visits to Dr. Chaudhry.
Despite allegedly disabling symptoms, plaintiff went from August 2010 to
March 2011 between doctor visits.

(Tr. 335, 486.)

An ALJ can consider

the frequency of treatment as a factor in evaluating medical opinions.
See 20 C.F.R. § 416.927(c)(2)(I).
There

was

also

record

evidence

that

Dr.

Chaudhry

relied

on

plaintiff's own estimates of her ability to perform work activity.
Plaintiff testified that when Dr. Chaudhry filled out the MSS, he simply
asked her the questions on the form and that she in turn answered.
46-47.)

(Tr.

See Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993)(ALJ is

justified in discrediting the opinion of treating physician when based
solely on claimant's subjective complaints and not supported by other
findings);

Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (ALJ is

entitled to give less weight to treating physician’s opinion because it
was based largely on claimant’s subjective complaints rather than on
objective medical evidence).
Plaintiff further contends that Dr. Chaudhry's opinion is supported
by that of Dr. Bashir who examined her on November 9, 2009 for diffuse
joint and soft tissue pain. However, Dr. Bashir found that plaintiff had
full ROM and no synovitis or inflammation in any joints, and her lab
results were negative for inflammatory arthritis.

Dr. Bashir’s only

positive finding was that plaintiff's subjective reports of tenderness
were consistent with fibromyalgia.

But rather than indicating that

plaintiff was disabled, Dr. Bashir instructed her to start an exercise
and stretching program.

(Tr. 296-302.)

The ALJ also noted that

plaintiff told Dr. Bashir that her stiffness improved upon waking and
becoming active.

(Tr. 13, 296).

ever followed up with Dr. Bashir.

There is no evidence that plaintiff
Finally, in the months following

plaintiff's appointment with Dr. Bashir, Dr. Chaudhry was no longer
diagnosing

fibromyalgia

or

describing

any

fibromyalgia-related

complaints. (Tr. 335, 484-87.) In fact, plaintiff repeatedly denied any
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myalgias.

(Tr. 335, 484.)

The minimal findings contained in Dr.

Bashir's report do not support the limitations set forth by Dr. Chaudhry.
(Tr. 296-302.)
Based on all of the above, the ALJ properly considered all of the
medical opinion evidence in the record.
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

is

consistent

with

the

applicable

law.

Commissioner of Social Security is affirmed.

The

decision

/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE

- 14 -

the

An appropriate Judgment

Order is issued herewith.

Signed on September 16, 2013.

of