Barton v. Astrue

Filing 28

MEMORANDUM OPINION: IT IS HEREBY ORDERED that the relief sought by Plaintiff in his Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 18, IT IS FURTHER ORDERED that a separate judgment be entered incorporating this Memorandum and Opinion. Signed by Magistrate Judge Noelle C. Collins on 4/2/2014. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHNNY M. BARTON, JR.,
Plaintiff,
V.
CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.1

)
)
)
)
)
)
)
)
)
)

Case No. 4:12CV1577 NCC

MEMORANDUM AND OPINION
This is an action under Title 42 U.S.C. § 405 (g) for judicial review of the final decision
of the Commissioner denying the application of Johnny M. Barton, Jr. (Plaintiff) for Disability
Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et
seq., and for Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381
et seq. Plaintiff has filed a brief in support of the Complaint. Doc. 18. Defendant has filed a
brief in support of the Answer. Doc. 25. The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). Doc. 27.
I.
PROCEDURAL HISTORY
Plaintiff filed his application for DIB and SSI, alleging a disability onset date of July 1,
2008. Tr. 102-11. Plaintiff’s applications were denied and he requested a hearing before an
Administrative Law Judge (ALJ). Tr. 44-54. In April 2011, a hearing was held before an ALJ.
Tr. 19-39. In a decision dated May 19, 2011, the ALJ found Plaintiff not disabled. Tr. 10-14.
1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she should be substituted for
Michael J. Astrue as the defendant. No further action need be taken to continue this suit by
reason of the last sentence of § 205(g) of the Act.

Plaintiff filed a request for review with the Appeals Council, which denied Plaintiff’s request on
June 28, 2011. Tr. 1-3. As such, the ALJ’s decision is the final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities.” Id. “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
pt. 404, subpt. P, app. 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. See id.
2

Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her Residual Functional Capacity (RFC). See Steed v. Astrue, 524 F.3d 872, 874
n.3 (8th Cir. 2008) (“Through step four of this analysis, the claimant has the burden of showing
that she is disabled.”); Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731,
737 (8th Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ will
review a claimant’s RFC and the physical and mental demands of the work the claimant has done
in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. See Steed, 524 F.3d at
874 n.3; Young, 221 F.3d at 1069 n.5. If the claimant meets these standards, the ALJ will find
the claimant to be disabled. “The ultimate burden of persuasion to prove disability, however,
remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir.
2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC
remains on the claimant, even when the burden of production shifts to the Commissioner at step
five.”); Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004) (“[T]he burden of production
shifts to the Commissioner at step five to submit evidence of other work in the national economy
that [the claimant] could perform, given her RFC.”). Even if a court finds that there is a
preponderance of the evidence against the ALJ’s decision, that decision must be affirmed if it is
supported by substantial evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984).
3

“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

In

Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of
the evidence and it allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the Secretary
may decide to grant or deny benefits without being subject to reversal on
appeal.

See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not reverse merely
because substantial evidence exists for the opposite decision.”) (quoting Johnson v. Chater, 87
F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004)
(“[R]eview of the Commissioner’s final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993); Murphy v. Sullivan, 953 F.2d 383, 384 (8th
Cir. 1992). Instead, the district court must simply determine whether the quantity and quality of
evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s
conclusion. See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the
fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). See also Onstead v.
Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an ALJ’s decision is conclusive upon a
reviewing court if it is supported by “substantial evidence”). Thus, an administrative decision
which is supported by substantial evidence is not subject to reversal merely because substantial
4

evidence may also support an opposite conclusion or because the reviewing court would have
decided differently. See Krogmeier, 294 F.3d at 1022. See also Eichelberger, 390 F.3d at 589;
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661
(8th Cir. 1998)); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical
impairment;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.

Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal requirements.” Ford v.
Astrue, 518 F.3d 979, 981 (8th Cir. 2008).

5

The Social Security Act defines disability as the “inability 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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the
claimant has the burden of proving that the disability results from a medically determinable
physical or mental impairment, direct medical evidence of the cause and effect relationship
between the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When evaluating evidence
of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992); Polaski, 739 F.2d
at 1322.
The absence of objective medical evidence is just one factor to be considered in
evaluating the plaintiff’s credibility. See id. The ALJ must also consider the plaintiff’s prior
work record, observations by third parties and treating and examining doctors, as well as the
plaintiff’s appearance and demeanor at the hearing. See Polaski, 739 F.2d at 1322; Cruse, 867
F.2d at 1186.
The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the plaintiff’s complaints. See Guilliams, 393 F.3d at 801;
6

Masterson, 363 F.3d at 738; Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v.
Chater, 62 F.3d 220, 223 (8th Cir. 1995).

It is not enough that the record contains

inconsistencies; the ALJ must specifically demonstrate that he considered all of the evidence.
Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly discuss each
Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). See also Steed,
524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). The ALJ need only
acknowledge and consider those factors. See id.

Although credibility determinations are

primarily for the ALJ and not the court, the ALJ’s credibility assessment must be based on
substantial evidence. See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v.
Heckler, 780 F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20 C.F.R. §
404.1545(a)(1), and includes an assessment of physical abilities and mental impairments. 20
C.F.R. § 404.1545(b)-(e). The Commissioner must show that a claimant who cannot perform his
or her past relevant work can perform other work which exists in the national economy. See
Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy
v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first
prove that the claimant retains the RFC to perform other kinds of work. See Goff, 421 F.3d at
790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by substantial evidence.
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983). Second, once the plaintiff’s capabilities
are established, the Commissioner has the burden of demonstrating that there are jobs available
in the national economy that can realistically be performed by someone with the plaintiff’s
qualifications and capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.

7

To satisfy the Commissioner’s burden, the testimony of a vocational expert (VE) may be
used. An ALJ posing a hypothetical to a VE is not required to include all of a plaintiff’s
limitations, but only those which he finds credible. See Goff, 421 F.3d at 794 (“[T]he ALJ
properly included only those limitations supported by the record as a whole in the
hypothetical.”); Rautio, 862 F.2d at 180.

Use of the Medical-Vocational Guidelines is

appropriate if the ALJ discredits the plaintiff’s subjective complaints of pain for legally
sufficient reasons. See Baker v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v.
Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.
1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the Commissioner’s
final determination that Plaintiff was not disabled. See Onstead, 962 F.2d at 804. Thus, even if
there is substantial evidence that would support a decision opposite to that of the Commissioner,
the court must affirm her decision as long as there is substantial evidence in favor of the
Commissioner’s position. See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
At the hearing, Plaintiff’s attorney stated that Plaintiff was unable to engage in full time
work “due to primarily physical impairments with his back.” Tr. 23. Plaintiff, who was 50 years
old, testified that he no longer did yard work; after he helped a friend fix a van, he had to lay
down on the couch; he last worked in a machine shop; he had memory problems since an
automobile accident several years prior to the hearing; he could not “breath work nothing”
because of his “COPD”; he had severe back pain, which limited his ability to walk and lift; he
could not lift 10 pounds frequently; he could stand for 15-20 minutes; he could not sit in the
same spot for over 30-45 minutes at a time without having to move because his back would start
8

hurting; he could not grocery shop and carry shopping bags and could no longer help with yard
work; at the time of the hearing, he smoked less than a half pack of cigarettes a day; he was
going to take a smoking cessation class; for the year prior to the hearing he no longer “g[ot]
souped up drunk every night” and only drank with “one or two with a friend once or twice a
week”; he did not have side effects from his medications; he would not have any trouble with
back pain working as a truck driver if he could get a job where he did not have to help load or
unload trucks; at the time of the hearing, he drove a pickup truck; he had never seen a truck
driver job that did not require having to help with loading or unloading; when he worked at
Trinity Trucking he drove a “Semi,” which was a flat bed, and did not have to do any lifting,
although he had to “pull some chains over it and tighten them down”; when he worked as a
welder in 2006 for a year and a half, he lifted 15-25 pounds and was on his feet a lot; and when
he worked as a welder, he built frames for railroad cars. Tr. 24-36.
A VE testified that Plaintiff’s job as a truck driver was normally performed at the
medium level, but it was “light per [] claimant.” The VE also testified that production line
welding is normally medium unskilled work, and that a person with Plaintiff’s RFC could not
perform Plaintiff’s past work as a truck driver or welder as they were normally performed but
that such a person could perform such jobs “per claimant.” Tr. 35-37. The VE finally testified
that there was also other work at the light unskilled level in the national economy which a person
with Plaintiff’s RFC could perform, such as counter attendant and delivery driver, and that these
jobs existed in substantial numbers. Tr. 37.
The ALJ found Plaintiff met the insured status requirements through December 31, 2012;
Plaintiff had not engaged in substantial gainful activity since July 1, 2008, his alleged onset date;
Plaintiff had the severe impairments of emphysema and lower back pain; he did not have an

9

impairment or combination of impairments that met or medically equaled a listed impairment; he
had the RFC to perform light work as defined in the Act, and could only occasionally climb
stairs and ladders, kneel, stoop, crouch, crawl, balance, be exposed to cold extremes, or work
with hazards;2 Plaintiff was capable of performing his past relevant work as a welder or truck
driver; and, therefore, Plaintiff was not disabled.
Plaintiff argues the ALJ’s decision is not supported by substantial evidence because the
ALJ failed to give proper weight to the opinion of consulting examiner, Amy Marty, Ph.D., in
that the ALJ failed to include limitations in Plaintiff’s RFC regarding Plaintiff’s mental
disorders; the ALJ failed to give proper weight to the opinion of Stanley London, M.D.,
regarding Plaintiff’s physical limitations; and the ALJ failed to make sufficient findings
regarding Plaintiff’s credibility and the credibility of Plaintiff’s father.

For the following

reasons, the court finds Plaintiff’s arguments without merit and that the ALJ’s decision is
supported by substantial evidence.
A.

ALJ’s Credibility Determination:
The court will first consider the ALJ=s credibility determination, as the ALJ=s evaluation

of Plaintiff=s credibility was essential to the ALJ=s determination of other issues. See Wildman v.
Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The plaintiff] fails to recognize that the ALJ's
determination regarding her RFC was influenced by his determination that her allegations were
not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20 C.F.R. ''
404.1545, 416.945 (2010). As set forth more fully above, the ALJ=s credibility findings should
2

The Regulations define light work as >involv[ing] lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects up to 10 pounds.@ 20 C.F.R. ' 404.1567(b). Additionally,
A[s]ince frequent lifting or carrying requires being on one=s feet up to two-thirds of a workday,
the full range of light work requires standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday.@ Social Security Regulation (SSR) 83-10, 1983 WL 31251, at
*6.
10

be affirmed if they are supported by substantial evidence on the record as a whole; a court cannot
substitute its judgment for that of the ALJ. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law, and/or
Regulations relevant to a consideration of Plaintiff=s credibility, this is not necessarily a basis to
set aside an ALJ=s decision where the decision is supported by substantial evidence.

See

Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004); Wheeler v. Apfel, 224 F.3d 891, 895
n.3 (8th Cir. 2000); Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Montgomery v.
Chater, 69 F.3d 273, 275 (8th Cir. 1995). Additionally, an ALJ need not methodically discuss
each Polaski factor if the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are for the ALJ to
make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See also Tucker v. Barnhart, 363
F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not required to discuss each Polaski factor as long as
the analytical framework is recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v.
Chater, 87 F.3d 963, 966 (8th Cir. 1996). In any case, A[t]he credibility of a claimant=s subjective
testimony is primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001). AIf an ALJ explicitly discredits the claimant=s testimony and gives
good reason for doing so, [a court] will normally defer to the ALJ=s credibility determination.@
Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). See also Halverson v. Astrue, 600 F.3d
922, 932 (8th Cir. 2010); Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following
reasons, the court finds that the reasons offered by the ALJ in support of his credibility
determination are based on substantial evidence.

11

First, Plaintiff suggests the ALJ failed to give proper weight to “third party opinions.”
Doc. 18 at 15. Indeed, Plaintiff’s girlfriend stated, in the “remarks” section of the function
report, that Plaintiff could not remember “a lot of things that happen.” Tr. 149. Also, a woman
who said she lived with Plaintiff from December 12, 2010, to April 2011, stated, in a letter, that
she observed Plaintiff have to sit after getting the mail as he would be short of breath, and that
Plaintiff did not remember what he had said. Tr. 167. Another individual wrote, in a note, that
he had known Plaintiff for about 30 years and that Plaintiff had gone from doing “just about any
thing to doing nothing like he use to”; he coughed a lot and had trouble “getting his breath”; and
his memory had not been the same since he had been in a bad auto accident. Tr. 168. While the
Eighth Circuit Court of Appeals has frequently criticized the failure of an ALJ to consider
subjective testimony of the family and others and while such testimony must be considered, no
case directs that reversal is appropriate where an ALJ fails to specifically do so when he has
discredited the testimony of the claimant. See e.g., Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir.
1988). Smith v. Heckler, 735 F.2d 312, 317 (8th Cir. 1984). Moreover, the ALJ may discount
corroborating testimony on the same basis used to discredit Plaintiff=s testimony. See Black v.
Apfel, 143 F.3d 383, 387 (8th Cir. 2006). Thus, where the same evidence that the ALJ relied
upon when discrediting the testimony of Plaintiff would have been the same evidence which
would have supported discrediting the testimony of Plaintiff=s girlfriend or others, the ALJ=s
failure to address or discount such testimony is Ainconsequential.@ Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000).

See also Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996)

(holding that an ALJ=s decision need not be reversed where he failed to consider testimony which
would not have had an effect on the outcome of the case). Additionally, although Plaintiff’s livein girlfriend was not his spouse, an ALJ may discount the testimony of a spouse because she has

12

a financial stake in the outcome of the claimant=s case. See Choate v. Barnhart, 457 F.3d, 865,
872 (8th Cir. 2006). Finally, to the extent the ALJ did not mention evidence of record submitted
by third parties, the ALJ’s failure to do so does not indicate that such evidence was not
considered. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 n.3 (8th Cir. 2005) (AThe
fact that the ALJ=s decision does not specifically mention the [particular listing] does not affect
our review.@); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995). As such, the court finds
that to the extent the ALJ did not specifically address evidence submitted from Plaintiff’s
girlfriend or others, such a failure does not warrant reversal and/or remand.
Second, consistent with the case law and Regulations, the ALJ considered that the
objective medical evidence did not establish impairments to the severity alleged by Plaintiff. See
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (in assessing credibility, ALJ should consider
objective evidence); Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010) (absence of
objective medical evidence to support complaints is factor for ALJ to consider, although ALJ
may not discount claimant's subjective complaints solely because they are unsupported by
objective medical evidence); Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004); Smith v.
Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993) (ALJ properly discounted claimant=s complaints of
pain when medical evidence failed to establish significant back problem). As considered by the
ALJ in regard to Plaintiff’s alleged physical impairments, the impression from January 2009 xrays was “no evidence of active pulmonary disease” and no rib fracture, pleural hematoma,
pneumothorax, lung contusion, or other abnormality. Tr. 205. Stanley London, M.D., who saw
Plaintiff for a consultive examination, on October 22, 2009, reported that Plaintiff was welldeveloped and nourished and did not appear to be in any physical distress until he started
moving; he had no clubbing, cyanosis, or edema in his extremities; he walked “fairly normally”;

13

he could squat and heel and toe walk; he got on and off the examination table with “some painful
difficulty”; he was tender in his low back but there was “no real spasm”; and his flexibility was
“90 degrees with ease.” Tr. 214-15. Dr. London also reported that Plaintiff’s lower extremity
muscle strength was normal, and he could fully extend his hand, and make a fist, and his fingers
could be opposed. Tr. 222-23. X-rays of the lumbosacral spine ordered by Dr. London showed
degenerative joint disease; “reasonably good” alignment; fusion with degenerative changes on
the left sacroiliac join; and minor degenerative changes through the lumbar spine and mild
narrowing at L5-S1. Tr. 216.
On October 22, 2009, Plaintiff had a consultive examination with Dr. Marty. Dr. Marty
reported that Plaintiff presented with complaints of back pain, depression, and memory loss and
forgetfulness, and that, upon examination, Plaintiff had a “mildly depressed” mood and blunted
affect; he was spontaneous, coherent, relevant, logical, attentive, polite, and answered all
questions; his speech was normal and no tangential thoughts, flight or ideas or preservation were
observed; and he had no perceptual distortions or delusions; and testing showed “overall, no
significant cognitive impairments.”

Dr. Marty also reported that Plaintiff had a Global

Assessment of Functioning (GAF) of 75.3 Dr. Marty’s diagnosis included alcohol dependence,
in full remission, and adjustment disorder, with depressed mood. Tr. 219-21.
3

Global assessment of functioning (AGAF@) is the clinician=s judgment of the individual=s
overall level of functioning, not including impairments due to physical or environmental
limitations. See Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, 30-32 (4th ed.
1994). Expressed in terms of degree of severity of symptoms or functional impairment, GAF
scores of 31 to 40 represent Asome impairment in reality testing or communication or major
impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood,@ 41 to 50 represents Aserious,@ scores of 51 to 60 represent Amoderate,@ scores of 61 to 70
represent Amild,@ and scores of 90 or higher represent absent or minimal symptoms of
impairment. Id. at 32. See also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (A[A] GAF
score of 65 [or 70] ... reflects >some mild symptoms (e.g. depressed mood or mild insomnia) OR
some difficulty in social, occupational, or school functioning ... but generally functioning pretty
well, has some meaningful interpersonal relationships.=@) (quoting Kohler v. Astrue, 546 F.3d
14

Further, pursuant to a December 10, 2009 consultive physical examination, Barry
Burchett, M.D., reported Plaintiff denied his pain radiated into his lower extremities; Plaintiff
said he smoked two and a half packs of cigarettes a day and used alcohol regularly; Plaintiff had
no history of shortness of breath, coughing, or chest pain; Plaintiff’s visual fields were normal;
he ambulated with a normal gait; he appeared stable at station and comfortable in the supine and
sitting positions; his mood, orientation, and thinking seemed appropriate; his recent and remote
memory for medical events was good; he was not short of breath with exertion or lying flat; his
heart had a regular rate, with nor murmur; there was no evidence of peripheral vascular
insufficiency; his abdomen was non-tender; range of motion in his hands was normal; his legs
and cervical spine were not tender; there was no evidence of muscle spasm in the cervical spine;
his dorsolumbar spine had normal curvature; there was no evidence of parvertebral muscle
spasm; he was able to stand on one leg at a time without difficulty; he had no hip joint tenderness
or swelling; and he was able to tandem gait and squat without difficulty. In summary, Dr.
Burchett reported that Plaintiff’s straight leg raising was negative; the range of motion in his
spine was normal; he had no tenderness in his back; and there was no evidence of compressive
neuropathy in the lower extremities. Tr. 234-37.
On September 9, 2010, Plaintiff presented to Nurse Practitioner Sandy Mitkos for a
psychiatric referral. Nurse Mitkos reported, on examination, no abnormalities in regard to
Plaintiff’s head, eyes, neck, heart, abdomen, back, and musculoskeletal system.

Tr. 254.

Although Nurse Mitkos diagnosed Plaintiff with memory loss and anxiety, she was not an
acceptable medical source. See Lacroix v. Barnhart, 465 F.3d 881 (8th Cir. 2006) (medical
opinions are defined as statements from physicians, psychologists, and other acceptable medical
260, 263 (2d Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed. 2000)) (alterations in original).
15

sources; nurse practitioners and therapists are not acceptable medical sources as defined in the
Regulations) (citing 20 C.F.R. '' 404.1513(a), 416.913(a)).
When Plaintiff presented to Thomas Spence, M.D., on January 24, 2011, for complaints
of shortness of breath, Dr. Spence reported that Plaintiff continued to smoke; he denied sputum
production, chest pain, and wheezing; his extremities were without tenderness; and pulmonary
testing showed “well preserved lung function.” Tr. 261. A chest x-ray ordered by Dr. Spence
showed emphysematous COPD with osteopenia and no acute infiltrates. Tr. 263. When Plaintiff
presented to Dr. Spence on February 7, 2011, Dr. Spence reported that Plaintiff continued to
smoke, and, although Plaintiff’s chest x-ray was consistent with COPD, pulmonary-function
testing was “remarkably good” and Plaintiff denied sputum production and chest pain or
wheezing. Tr. 259. A February 7, 2011 x-ray showed no active pulmonary disease. As such,
the court finds that substantial evidence supports the ALJ’s discrediting Plaintiff’s complaints
regarding the severity of his impairments based on the objective medical evidence. The court
finds that the ALJ properly considered that the objective medical evidence did not establish
impairments to the severity alleged by Plaintiff, and that the ALJ’s decision, in this regard, is
based on substantial evidence.
Third, the ALJ considered Plaintiff’s description of his daily activities in a November 2009
Function Report. In the Function report Plaintiff said he started his day by going outside and
trying to “clean up [his] yard, then [] try[ing] to clean [his] trail[e]r”; after doing that he would
sit down for “about a half hour or so, [and] then go back outside and try to work around [his]
yard and . . . [his] vehicle”; after doing that he “straighten[ed] out [his] storage shed”; he took
care of pets by filling “three feeders full of food and giv[ing] them water”; his live-in girlfriend
helped him with his pets; he did not need reminders to take care of his personal needs and

16

grooming; he moved about fifteen minutes; he made repairs, which took him “pretty much all
day,” if his back did not prevent him from doing this; he went outside “all day long and
sometimes at night”; he drove a car; went out alone, and shopped in stores; when shopping, he
bought parts for his vehicles and for his house; he shopped “about 5 to 10 times a month for
about 20 to 30 min. each time”; he could pay bills and count change, but could not “do the check
book” because that task “need[ed] a memory”; he watched television and played games on the
computer; he could no longer weld due to his back; and he talked to friends on the computer and
on the telephone every day. Tr. 142-47.
While the undersigned appreciates that a claimant need not be bedridden before he can be
determined to be disabled, Plaintiff's daily activities can nonetheless be seen as inconsistent with
his subjective complaints of a disabling impairment and may be considered in judging the
credibility of complaints. See Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)
(holding that the ALJ properly considered that the plaintiff watched television, read, drove, and
attended church upon concluding that subjective complaints of pain were not credible); Dunahoo
v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001); Onstead, 962 F.2d at 805; Murphy v. Sullivan,
953 F.2d 383, 386 (8th Cir. 1992); Benskin, 830 F.2d at 883; Bolton v. Bowen, 814 F.2d 536,
538 (8th Cir. 1987). Indeed, the Eighth Circuit holds that allegations of disabling Apain may be
discredited by evidence of daily activities inconsistent with such allegations.@ Davis v. Apfel,
239 F.3d 962, 967 (8th Cir. 2001). AInconsistencies between [a claimant=s] subjective complaints
and [his] activities diminish [his] credibility.@

Goff, 421 F.3d at 792.

See also Haley v.

Massanari, 258 F.3d 742, 748 (8th Cir. 2001); Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir.
1996) (holding that a claimant=s daily activities, including visiting neighbors, cooking, doing
laundry, and attending church, were incompatible with disabling pain and affirming denial of

17

benefits at the second step of analysis). The court finds, therefore, that the ALJ properly
considered Plaintiff=s daily activities upon choosing to discredit his complaints of debilitating
pain.
Fifth, consistent with the case law, the ALJ further considered Plaintiff’s hearing
testimony regarding his limitations and his description of what he could do in the Function
Report, and noted that there “was no discernable rational for the decompensation of [Plaintiff’s]
condition.”

The ALJ concluded, therefore, that Plaintiff’s allegations regarding the

“pervasiveness of his impairments and the limiting effects of them” was not fully credible. Tr.
13. See Eichelberger, 390 F.3d at 589 (ALJ may disbelieve claimant’s subjective complaints of
pain because of “inherent inconsistencies or other circumstances”). The court also notes that
Plaintiff told Dr. London, in October 2009, that he could stand for 4 hours and sit 4-5 hours. Tr.
214. Dr. Marty reported, in October 2009, that Plaintiff grocery shopped, completed household
chores, and got out of the house every day and went places with his girlfriend. Tr. 220. The
court has addressed the substance and content of Plaintiff’s medical records above. As such, the
court further finds that substantial evidence supports the ALJ=s decision that there is no
discernable rational for the decompensation of Plaintiff’s condition from the date he completed
the function report through the date of the hearing, and that the ALJ’s decision, in this regard, is
based on substantial evidence.
Sixth, the ALJ considered Plaintiff did not report to a medical source any of the
allegations made at the hearing regarding the severity of his impairments. Tr. 13. See Zeiler v.
Barnhart, 384 F.3d 932, 936 (8th Cir. 2004) (affirming adverse credibility determination based in
part on inconsistencies between claimant’s assertion that she had problems concentrating due to
pain medication and her never complaining to her doctors of medications’ side effects).

18

Seventh, the ALJ considered that no treating or examining doctor indicated that Plaintiff
is disabled or even that he had limitations greater than those which the ALJ included in
Plaintiff’s RFC. Tr. 13. See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 1069) (AWe find it
significant that no physician who examined Young submitted a medical conclusion that she is
disabled and unable to perform any type of work.@). Although Dr. London reported, in October
2009, that Plaintiff was unable to work, he opined that Plaintiff would be incapacitated only 3-5
months. Tr. 225.

See 20 C.F.R. ' 414.909 (“Unless your impairment is expected to result in

death, it must have lasted or must be expected to last for a continuous period of at least 12
months. We call this the duration requirement.”).
Eighth, while the record does not specifically reflect that Plaintiff, who complained of
breathing difficulty, was advised to stop smoking, it was noted, in December 2009, that he
smoked two and a half packs of cigarettes a day. Tr. 235. In January and February 2011, he was
still smoking. Tr. 25, 261. See Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (claimant=s
failure to comply with prescribed medical treatment and lack of significant medical restrictions is
inconsistent with complaints of disabling pain). In conclusion, the court finds that the ALJ
properly considered Plaintiff’s credibility and that the ALJ’s credibility determination is based
on substantial evidence.
B.

Plaintiff’s RFC:
Plaintiff argues the ALJ failed to take his mental limitations into consideration and failed

to include mental restrictions in his RFC. The Regulations define RFC as Awhat [the claimant]
can do@ despite his or her Aphysical or mental limitations.@ 20 C.F.R. ' 404.1545(a). AWhen
determining whether a claimant can engage in substantial employment, an ALJ must consider the
combination of the claimant=s mental and physical impairments.@ Lauer v. Apfel, 245 F.3d 700,

19

703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC based on all relevant, credible
evidence in the record, >including the medical records, observations of treating physicians and
others, and an individual=s own description of his limitations.=@ Tucker v. Barnhart, 363 F.3d
781, 783 (8th Cir. 2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See
also Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995).
To determine a claimant=s RFC, the ALJ must move, analytically, from ascertaining the
true extent of the claimant=s impairments to determining the kind of work the claimant can still
do despite his or her impairments.

Although assessing a claimant=s RFC is primarily the

responsibility of the ALJ, a A>claimant's residual functional capacity is a medical question.=@
Lauer, 245 F.3d at 704 (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). The Eighth
Circuit clarified in Lauer, 245 F.3d at 704, that A>[s]ome medical evidence,= Dykes v. Apfel, 223
F.3d 865, 867 (8th Cir. 2000) (per curiam), must support the determination of the claimant's
RFC, and the ALJ should obtain medical evidence that addresses the claimant=s >ability to
function in the workplace,= Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).@ Thus, an ALJ
is Arequired to consider at least some supporting evidence from a professional.@ Id. See also
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (AThe ALJ bears the primary
responsibility for determining a claimant's RFC and because RFC is a medical question, some
medical evidence must support the determination of the claimant's RFC.@); Eichelberger, 390
F.3d at 591.
Upon making an RFC assessment, an ALJ must first identify a claimant=s functional
limitations or restrictions, and then assess his or her work-related abilities on a function-byfunction basis. See Masterson, 363 F.3d at 737; Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir.
2004). The RFC need only include a plaintiff=s credible limitations. See Tindell v. Barnhart,

20

444 F.3d 1002, 1007 (8th Cir. 2006) (AThe ALJ included all of Tindell=s credible limitations in
his RFC assessment, and the ALJ=s conclusions are supported by substantial evidence in the
record.@). Pursuant to this requirement, the ALJ found that Plaintiff=s subjective complaints
were not credible and further determined his functional limitations, which included lifting no
more than 10 pounds frequently and twenty pounds occasionally.
Although the ALJ did not include any limitations related to Plaintiff’s alleged mental
impairments, as discussed above, the ALJ considered the relevant evidence.

The ALJ

acknowledged that Plaintiff had been diagnosed with anxiety and depression. Indeed, the mere
existence of a mental condition is not per se disabling. See Dunlap v. Harris, 649 F.2d 637, 638
(8th Cir. 1981).

Further, the ALJ considered the record as a whole to determine whether

Plaintiff had the signs or symptoms of a mental impairment. As required by the Regulations,
the ALJ considered Plaintiff’s mental status examination and his medical records. See 20
C.F.R. ' ' 404.1520a(b)(1) (signs and symptoms gleaned from mental status exam or
psychiatric history and must be established by medical evidence). Only after doing so did the
ALJ conclude that Plaintiff’s alleged mental impairments were not severe.
To the extent Plaintiff argues the ALJ did not give sufficient weight to Dr. Marty’s
reporting that Plaintiff had weakness in the areas of visual immediate memory, auditory delayed
memory, and visual delayed memory, and that Plaintiff had a depressed mood, problems with
receptive or expressive language ability, and blunted affect, Dr. Marty also reported, as discussed
in part above, that testing showed Plaintiff had “no significant deficits in areas of cognitive and
memory functioning,” as his scores were in the low average, average, and high average ranges;
“overall [Plaintiff had] no significant cognitive impairments”; he was only “mildly” depressed;
his flow of information was logical and sequential; he had no thought disturbances; his speech

21

was normal; he understood instructions; and he had a GAF of 75, indicating only mild
symptoms. Tr. 219-20. See n.3. Moreover, Dr. Marty reported, in regard to activities of daily
living, Plaintiff grocery shopped and completed household chores, although he did not pay bills
or cook and had to write things down. In the area of social functioning, Dr. Marty found
Plaintiff was not socially isolated. In regard to his appearance and ability to care for his personal
needs, Plaintiff was able to care for his personal needs. As for concentration, persistence, and
pace, Dr. Marty noted Plaintiff had “some difficulty in his ability to maintain adequate attention
and concentration with appropriate persistence and pace.” Tr. 220. Thus, Dr. Marty did not find
Plaintiff had more than mild limitations, and he did not report that Plaintiff had any episodes of
decompensation.4

The court finds, therefore, that the ALJ gave proper weight to Dr. Marty’s

opinion. The court further finds that substantial evidence supports both the ALJ’s determination
that Plaintiff did not have a severe mental impairment and his failure to include non-exertional
limitations related to Plaintiff’s alleged mental impairments in his RFC.
As for Plaintiff’s argument that the ALJ failed to sufficiently explain why he rejected Dr.
London’s October 2009 opinion, the ALJ did not specifically discuss Dr. London’s opinion.
Any error in this regard, however, is harmless, as Dr. London’s report is not inconsistent with the

4

Where an ALJ finds a claimant has a mental impairment, the ALJ is required to rate the
degree of functional loss resulting from the impairment in four areas of function which are
deemed essential to work. 20 C.F.R. ' 404.1520a(c)(2). Those areas are: (1) activities of daily
living; (2) social functioning; (3) concentration, persistence or pace; and (4) deterioration or
decompensation in work or work-like settings. 20 C.F.R. ' 404.1520a(c)(3). The limitation in
the first three functional areas of activities of daily living (social functioning and concentration,
persistence, or pace) is assigned a designation of either Anone, mild, moderate, marked, [or]
extreme.@ 20 C.F.R. ' 404.1520a(c)(4). The degree of limitation in regard to episodes of
decompensation is determined by application of a four-point scale: A[n]one, one or two, three,
four or more.@ Id. When Athe degree of [] limitation in the first three functional areas@ is Anone@
or Amild@ and Anone@ in the area of decompensation, impairments are not severe, Aunless the
evidence otherwise indicates that there is more than a minimal limitation in [a claimant=s] ability
to do basic work activities.@ 20 C.F.R. ' 404.1520a(d)(1).
22

ALJ’s RFC determination; as stated above, Dr. London reported that Plaintiff walked fairly
normally, and had no abnormalities in his extremities. To the extent Dr. London opined that
Plaintiff could not work, such a decision is reserved for the Commissioner, see Davidson v.
Astrue, 578 F.3d 838, 841, (8th Cir. 2009) (issue of disability reserved for Commissioner), and,
in any case, Dr. London opined Plaintiff would be unable to work only 3-5 months, see 20
C.F.R. ' 414.909

(12-month duration requirement).

Dr. London’s opinion regarding the

duration of Plaintiff’s impairments was supported when Dr. Burchett reported just several
months later, in December 2009, that, despite Plaintiff’s complaint of back pain, his straight leg
raising was negative, he had normal range of motion in the spine, no tenderness or spasm in the
back, and no evidence of neuropathy in the lower extremities. Tr. 237. Further, x-rays of the
lumbosacral spine ordered by Dr. London showed “reasonably good” alignment, minor
degenerative changes through the lumbar spine and mild narrowing at L5-S1. Tr. 216. See
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989) (opinions of treating doctors are not
conclusive in determining disability status and must be supported by medically acceptable
clinical or diagnostic data). Also, Dr. London’s report was based partly on Plaintiff’s subjective
complaints, including Dr. London’s notation that it was painful for Plaintiff to get on and off the
examination table. See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (ALJ was entitled to
give less weight to the opinion of a treating doctor where the doctor=s opinion was based largely
on the plaintiff=s subjective complaints rather than on objective medical evidence). Finally, Dr.
London was not a treating doctor, and performed only a consultive examination of Plaintiff. See
Chamberlain, 47 F.3d at 1494 (AMedical reports of a treating physician are ordinarily entitled to
greater weight than the opinion of a consulting physician.@).

23

As for Plaintiff’s allegation of back pain, the ALJ included limitations in Plaintiff’s RFC
which accommodated this pain to the extent the ALJ found Plaintiff’s allegations credible. Thus,
he limited Plaintiff to light work, and limited him to only occasionally climbing, kneeling,
stooping, crouching, crawling, balancing, and being exposed to cold extremes or work with
hazards. See Tindell, 444 F.3d at 1007 (ALJ need only include claimant’s credible limitations in
his RFC).

In conclusion, the court finds that the ALJ’s RFC determination, in its entirety, is

supported by substantial evidence and that it is consistent with the requirements of the
Regulations and case law.
After determining Plaintiff’s RFC the ALJ posed a hypothetical to the VE which
described a person of Plaintiff’s age and education with his work history. See Martise v. Astrue,
641 F.3d 909, 927 (8th Cir. 2011) (AThe ALJ's hypothetical question to the vocational expert
needs to include only those impairments that the ALJ finds are substantially supported by the
record as a whole.@); Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir. 2005) (proper
hypothetical sets forth impairments supported by substantial evidence and accepted as true by
ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) (AIn posing hypothetical questions to a
vocational expert, an ALJ must include all impairments he finds supported by the administrative
record.@). The VE testified that, while Plaintiff’s past relevant work as a truck driver and welder
is generally performed at the medium level, Plaintiff performed it at the light exertional level,
and that, therefore, Plaintiff could perform his past relevant work.
While the court finds it rather incomprehensible that an individual could perform
Plaintiff’s past work as a truck driver or welder at the light level, and while it is questionable that
Plaintiff’s description of his past relevant work was light in that he was required to put chains on
trucks, the VE also testified that there was other work which Plaintiff could perform and that

24

such work was available in significant numbers in the national economy. See Martise, 641 F.3d
at 927 (ABased on our previous conclusion ... that >the ALJ's findings of [the claimant=s] RFC are
supported by substantial evidence,= we hold that >[t]he hypothetical question was therefore
proper, and the VE's answer constituted substantial evidence supporting the Commissioner=s
denial of benefits.=@); Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s
testimony is substantial evidence when it is based on an accurately phrased hypothetical
capturing the concrete consequences of a claimant=s limitations); Wingert v. Bowen, 894 F.2d
296, 298 (8th Cir. 1990). As such, the court finds that the ALJ’s determination that Plaintiff was
not disabled is based on substantial evidence.
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in his Complaint and
Brief in Support of Complaint is DENIED; Docs. 1, 18,
IT IS FURTHER ORDERED that a separate judgment be entered incorporating this
Memorandum and Opinion.

Dated this 2nd Day of April, 2014.

/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

25