Hetley v. Colvin

Filing 23

MEMORANDUM AND ORDER : re: SOCIAL SECURITY BRIEF filed by Plaintiff David M. Hetley ; IT IS HEREBY ORDERED that the relief sought by plaintiff in his brief in support of complaint [# 16 ] is denied. A separate Judgment in accordance with this Memorandum and Order will be entered this same date.. Signed by District Judge Carol E. Jackson on 1/8/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID M. HETLEY,
Plaintiff,
vs.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:13-CV-314 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On May 27, 2010, plaintiff David Hetley filed applications for supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., and disability insurance benefits,
Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of September 10, 2009.
(Tr. 94-95; 232-35). After plaintiff’s applications were denied on initial consideration
(Tr. 74-79), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 70).
Plaintiff and counsel appeared for a hearing on July 6, 2011. (Tr. 282-313). The
ALJ issued a decision denying plaintiff’s applications on August 10, 2011 (Tr. 13-21),
and the Appeals Council denied plaintiff’s request for review on January 2, 2013. (Tr.
3-5). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision. See
42 U.S.C. § 405(g).
II. Evidence Before the ALJ
A. Disability Application Documents

In his Disability Report (Tr. 137-47), plaintiff listed his disabling conditions as
gout, arthritis in his shoulders and knees, and gallbladder problems. In the past,
plaintiff worked as a forklift driver for a variety of warehouses and trucking businesses.
Plaintiff reported taking steroids for arthritis and Vicodin for pain. In his updated
disability report submitted on appeal (Tr. 98-107), he wrote that his arthritis had
worsened and he had gained weight from his medication.

He listed his current

medications as Mobic, Prednisone, Allopurinol, and Uloric for gout, and Aleve for pain.
He noted that he has experienced severe side effects from all of these medications.
In his Function Report (Tr. 108-36), plaintiff wrote that he lives alone in a house.
On an average day, he wakes up, takes medicine, and then, depending on his pain
level, does household chores or lies down. He prepares and eats sandwiches and
microwavable meals. His shoulder pain makes it difficult for him to dress himself and
brush his hair, and he has problems bathing and using the toilet due to his knee pain.
He goes outside once a day to get the mail, and goes to the grocery store once per
month. Approximately once per week, he socializes and spends time with others. He
is no longer able to run, jump, play ball with his son, fish, work on cars, play the
guitar, or go out with friends on the weekends.
He stated that his condition affects lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, stair climbing, completing tasks, and using his
hands. He estimated that he can lift a maximum of 20 to 30 pounds, and can walk
approximately 100 feet before he needs to rest for 10 to 20 minutes. He sometimes
uses a cane and walker to walk or to sit; these aids were prescribed when he was in
a car accident in 2001.
B. Hearing on July 6, 2011

-2-

At the time of the hearing, plaintiff was 34 years old, 5'9" tall, and weighed 256
pounds. Plaintiff explained that his normal weight was 150 to 180 pounds, but his
medication caused him to gain weight.

He confirmed that he has a high school

education, and was previously employed as a forklift driver. This work was “off and
on,” depending on the season. When he could not find work driving a forklift, he
sought other employment and was a cook in a bar for a few months. He ultimately left
his job driving forklifts because he could no longer climb on and off the forklift due to
the pain in his knees. He also could no longer lift heavy objects because his hands and
knees were swollen. He takes only over-the-counter medications, such as Ibuprofen
and Tylenol, because he is allergic to the medications his doctors have prescribed.
Plaintiff testified that he has gout flares that cause swelling in his toes, knees,
wrists, and fingers. He stated that his hands swell several times per week, and remain
swollen for days at a time. When his hands are swollen, he can move his fingers but
cannot make a fist. During episodes of extreme swelling, he cannot pick up a pen. He
stated that he can no longer play the guitar, because he has difficulty holding the
instrument and touching the strings. When plaintiff’s knees swell, he is unable to climb
a flight of stairs. He can walk to the mailbox and back, but has difficulty bending over,
and must use a walker to help him sit on the toilet.
Plaintiff stated that he spends most of his day lying down. His family members
come to his home to do his chores. Plaintiff makes his own microwave dinners and
sandwiches. His doctors have advised him to change his diet and stop drinking alcohol
to prevent gout flares. He stated that he complies with these recommendations for the
most part, but has not noticed an improvement in his gout. He still consumes about
six alcoholic drinks per month.

-3-

In addition to gout, plaintiff testified that he suffers from gallbladder pain.
Plaintiff estimated that he could sit upright for half an hour before his gallbladder starts
to hurt. Plaintiff also explained that he has pain and a limited range of motion in his
shoulder due to injuries sustained in a serious car accident in 2001. His spleen was
removed after the same accident. (Tr. 282-307).
Rita Payne, Ph.D., a certified disability management specialist, testified as a
vocational expert. The ALJ asked Dr. Payne about the employment opportunities for
a hypothetical individual with plaintiff’s education, age, and past work experience, who
is capable of performing at the sedentary exertion level and is limited to frequent use
of both upper extremities for fine manipulation. Dr. Payne testified that such an
individual would be unable to perform past work, but could be employed as a
dispatcher

(571

positions

in

Missouri

and

25,900

positions

nationally),

a

protective/surveillance service monitor (340 positions in Missouri and 17,500 positions
nationally), and a call out operator (153 positions in Missouri and 14,000 positions
nationally). The ALJ then altered the hypothetical and asked which jobs would be
available if that same individual could use his upper extremities for fine manipulation
and fingering only occasionally. Dr. Payne responded that such an individual could still
be employed as a dispatcher, protective/surveillance service monitor, and a call out
operator. Finally, the ALJ asked if that individual, in addition to only occasional use of
upper extremities for fingering, had the additional limitation of needing to lie down
during breaks.

Dr. Payne testified that there was no work such a person could

perform. (Tr. 307-313).
C. Records

-4-

On November 13, 2008, plaintiff went to the hospital emergency room with joint
pain. He reported having gout and other undiagnosed arthropathy for years. His
knees and wrists were painful and swollen, and he appeared to be in mild pain.
Plaintiff’s sensory and motor skills were intact. The examining physician diagnosed
plaintiff with arthropathy at multiple sites and prescribed Prednisone and Vicodin. (Tr.
207-18).
On April 16, 2010, plaintiff was admitted to the hospital. His chief complaint was
a fever, and he also had bilateral knee swelling and pain.

Orthopedic surgeons

aspirated plaintiff’s knee joints, and the fluid removed tested positive for uric acid. An
abdominal ultrasound of plaintiff’s gallbladder revealed some gallstones (cholelithiasis)
as well as sludge, but there was no indication of cholecystitis.1 Bilateral knee x-rays
were negative, as was a chest x-ray. Plaintiff was started on steroids, which lessened
his pain, and he was given a walker to help him move about his hospital room.
Attending physician Vikram Patney, M.D., wrote that plaintiff had a history of
gout, but had not complied with his primary care physician’s recommendation to get
an MRI scan of his knee because he was uninsured. Therefore, Dr. Patney contacted
social services, and plaintiff was given resources for inexpensive medications including
$4.00 prescriptions at Walmart and the grocery store.

Dr. Patney observed that

plaintiff was alert, oriented, and not in acute distress, and that plaintiff had edema of
both knees, an effusion on the right side, and tenderness at his joint lines. Plaintiff
was discharged on April 19, 2010, with diagnoses of fever, bilateral knee gouty
arthritis, chronic daily alcohol abuse, surgical asplenia in 2001 after motor vehicle
accident, and asymptomatic gallstones with biliary sludge. He was again prescribed
1

Cholecystitis is the inflammation of the gallbladder. See WebMD, available at
http://www.webmd.com/digestive-disorders/tc/cholecystitis-overview.

-5-

Prednisone and Vicodin. Dr. Patney instructed plaintiff on how to follow a “goutfriendly” diet, and recommended that he avoid red meats and stop drinking alcohol
(plaintiff reported drinking at least one six-pack of beer per day).

Dr. Patney

recommended that plaintiff start taking Allopurinol as soon as his acute episode of gout
resolved.2 (Tr. 152-59).
A few weeks later, on May 4, 2010, plaintiff was admitted to the hospital with
a fever and abdominal pain. He complained of gout in his knees and stated that he
was unable to walk. He reported that he drank 2 to 3 beers per day, and that his
current medication was Vicodin.

The attending physician, Sarada Sripada, M.D.,

observed that plaintiff was oriented and exhibited no distress. Both of his knees were
tender, but were not swollen.
Plaintiff underwent several consultative examinations during his hospital stay.
Taquir Ahmed, M.D., was consulted to evaluate plaintiff’s abdominal pain.
concluded that the pain was possibly related to plaintiff’s midline scar.

He

He also

observed gallstones, which appeared to be asymptomatic and an incidental finding.
Steven Baak, M.D., from rheumatology, examined plaintiff and determined that he had
borderline hyperurecemia and repeated gout attacks.

Dr. Baak planned to add

Allopurinol to plaintiff’s medications soon, and instructed plaintiff to discontinue
drinking. Ultimately, Dr. Sripada diagnosed plaintiff with gout, fever, and abdominal
pain. Plaintiff was given Mobic,3 and his knees were injected with steroids. On May

2

Allopurinol treats gout by reducing the amount of uric acid produced by the body. See
WebMD, avilalbe at http://www.webmd.com/drugs/drug-8610-Allopurinol+Oral.aspx?drugid
=8610&drugname=Allopurinol+Oral.
3

Mobic is a nonsteroidal anti-inflammatory drug that is used to treat arthritis. See
WebMD, available at http://www.webmd.com/drugs/drug-18173-Mobic+Oral.aspx?drugid=
18173&drugname=Mobic+Oral.

-6-

6, 2010, plaintiff was feeling better and was discharged with prescriptions for Mobic
and Vicodin. He had no activity restrictions upon discharge. (Tr. 248-65)
On June 9, 2010, plaintiff returned to Dr. Baak for a follow-up appointment. Dr.
Baak observed that plaintiff had gained weight on steroids, and decided to switch
plaintiff’s therapy to Uloric,4 Tramadol, and Ibuprofen due to recent side effects when
starting Meloxicam5 and Allopurinol. Dr. Baak observed that plaintiff’s gait was normal.
His hands, wrists, elbows, shoulders, feet, and ankles were swollen. (Tr. 266-71).
On January 13, 2011, plaintiff returned to Dr. Baak, complaining of severe
bilateral knee pain. However, Dr. Baak observed that plaintiff did not have significant
swelling of his knees. Plaintiff told Dr. Baak that he spends his time playing the guitar
and watching television. He said that he cannot lie down for long due to chronic issues
with his gallbladder. Dr. Baak stopped plaintiff’s steroids due to his weight gain, and
prescribed Tramadol, Tylenol, and Ibuprofen. (Tr. 273-78).
III. The ALJ’s Decision
In the decision issued on August 10, 2011, the ALJ made the following findings:
1.

Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2112 [sic].

2.

Plaintiff has not engaged in substantial gainful activity since September
10, 2009, the alleged onset date.

3.

Plaintiff has the severe impairments of gout and obesity.

4

Uloric is also used to treat gout by reducing uric acid production. See WebMD, available
at http://www.webmd.com/drugs/drug-151872-Uloric+Oral.aspx?drugid=151872
&drugname=Uloric+Oral.
5

Meloxicam is a nonsteroidal anti-inflammatory drug that is used to treat arthritis. See
WebMD, available at http://www.webmd.com/drugs/drug-911-Meloxicam+Oral.aspx?drugid
=911&drugname=Meloxicam+Oral.

-7-

4.

Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.

5.

Plaintiff has the residual functional capacity (RFC) to perform the full
range of sedentary work as defined in 20 C.F.R. 404.1567(a) and
416.967(a).

6.

Plaintiff is unable to perform any past relevant work.

7.

Plaintiff was born on May 5, 1977 and was 32 years old on the alleged
disability onset date.

8.

Plaintiff has at least a high school education, and is able to communicate
in English.

9.

Transferability of job skills is not material to the determination of disability
because applying the Medical-Vocational Rules directly supports a
finding of “not disabled,” whether or not the plaintiff has transferable job
skills.

10.

Considering plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the plaintiff can perform.

11.

Plaintiff has not been under a disability, as defined in the Social Security
Act, from September 10, 2009, through the date of the decision.
(Tr. 13-21).
IV. Legal Standards

The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so that
a reasonable mind might find it adequate to support the conclusion.” Estes v. Barnhart,
275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th
Cir. 2001)). If, after reviewing the record, the Court finds it possible to draw two
inconsistent positions from the evidence and one of those positions represents the

-8-

Commissioner’s findings, the Court must affirm the decision of the Commissioner.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3)
his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942. If the
claimant does not suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite [his] limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)).
assessment

of

the

extent

to

which

an

individual’s

“RFC is an administrative
medically

determinable

impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical

-9-

records, observations by treating physicians and others, and an individual’s own
description of his limitations.” Moore, 572 F.3d at 523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects
of medication; (5) any functional restrictions; (6) the claimant’s work history; and (7)
the absence of objective medical evidence to support the claimant’s complaints.”
Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted).
“Although ‘an ALJ may not discount a claimant’s allegations of disabling pain solely
because the objective medical evidence does not fully support them,’ the ALJ may find
that these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations and
set forth the inconsistencies in the record which caused the ALJ to reject the claimant’s
complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152
F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to his past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove his RFC and establish that he
cannot return to his past relevant work. Moore, 572 F.3d at 523; accord Dukes v.

-10-

Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
§ 404.1520(f).
If the claimant is prevented by his impairment from doing any other work, the
ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff contends that the ALJ erred in determining that plaintiff has the RFC to
perform the full range of sedentary work.

Plaintiff argues that the RFC was not

supported by any medical evidence, and that the ALJ improperly discredited plaintiff’s
subjective complaints of disabling pain.
A.

Residual Functional Capacity

“The ALJ bears the primary responsibility for determining a claimant’s residual
functional capacity based on all relevant evidence, but residual functional capacity
remains a medical question.” Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir.
2002) (citing Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001)). Therefore, the
RFC must be supported by some medical evidence. Lauer v. Apfel, 245 F.3d 700, 704
(8th Cir. 2001).
The medical evidence in this case supports the RFC. Medical records
demonstrate that plaintiff suffers from gout, which causes swelling, tenderness, and
pain in both of plaintiff’s knees. Some of these records suggest that plaintiff has

-11-

difficulty walking. In April 2010, plaintiff was given a walker to help him ambulate about
his hospital room. Both of plaintiff’s knees were swollen, and his joint line was tender.
The fluid in plaintiff’s knees tested positive for uric acid, confirming a diagnosis of gout.
However, other medical evidence suggests that plaintiff’s gout did not interfere with his
ability to walk. In June 2010, Dr. Baak observed that plaintiff’s gait was normal, and
in January 2011, Dr. Baak noted that plaintiff did not have significant swelling in his
knees, despite plaintiff’s complaints of severe pain.

After considering the medical

evidence, the ALJ decided to give plaintiff the “great benefit of the doubt” and include
the limitation of sedentary work in the RFC. (Tr. 19). This limitation is supported by
some medical evidence.
The medical evidence does not support additional limitations. Despite plaintiff’s
claim that he cannot sit for more than 30 minutes at a time due to pain from his
gallstones, Dr. Patney and Dr. Ahmed concluded that plaintiff did not have cholecystitis
and that his gallstones were asymptomatic. Plaintiff also alleges swelling in his hands
and wrists, limiting his ability to work with his hands. However, the medical records do
not indicate that plaintiff had any decreased mobility in his hands or coordination
problems. Indeed, no activity restrictions were imposed upon plaintiff when he was
discharged from the hospital.

Furthermore, even if the plaintiff was limited to

occasional use of his hands for tasks requiring fine manipulation, the vocational expert
testified that this limitation would not narrow the pool of employment opportunities
available to plaintiff.
The ALJ thoroughly discussed the medical evidence and, based upon that
evidence, decided to include a limitation to sedentary work, but exclude all other
limitations from the RFC. Because the ALJ’s RFC assessment is supported by some

-12-

medical evidence, and substantial evidence in the record as a whole, the Court will not
disturb that decision.
B.

The Credibility Determination

The ALJ found that plaintiff’s statements regarding the intensity and limiting
effects of his conditions were not fully credible. An ALJ may discount a claimant’s
subjective complaints “if there are inconsistencies in the evidence as a whole.” Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ must consider all evidence
relating to those complaints, “including the claimant’s prior work record, and
observations by third parties and treating and examining physicians relating to such
matters as: the claimant’s daily activities; the duration, frequency and intensity of the
pain; precipitating and aggravating factors; dosage, effectiveness and side effects of
medication; and functional restrictions.” Id. The Court “will defer to an ALJ’s credibility
finding as long as the ALJ explicitly discredits a claimant’s testimony and gives a good
reason for doing so.” Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (internal
citations and quotations omitted).
In this case, the ALJ gave several good reasons for discrediting plaintiff’s
subjective complaints. The ALJ pointed to plaintiff’s sporadic treatment history as
evidence that plaintiff’s claims of disabling pain were exaggerated. This is a proper
factor to consider when assessing a claimant’s credibility. See Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995) (“While not dispositive, a failure to seek treatment may
indicate the relative seriousness of a medical problem.”); see also Social Security Ruling
(SSR) 96-7p, at *7 (“... statements may be less than credible if the level or frequency
of treatment is inconsistent with the level of complaints....”).

-13-

Plaintiff argues that he rarely sought medical attention due to his limited
financial resources. Although the inability to afford treatment may justify the failure to
seek medical attention, Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004), there is
no evidence that plaintiff ever actively sought low-cost or free treatment. In fact, the
ALJ observed that, in April 2010, Dr. Patney attempted to put plaintiff in touch with
social services to help him obtain low-cost prescriptions. See Couch v. Colvin, No.
4:12-cv-4054, 2013 WL 1789598, at *3-4 (W.D. Ark. Apr. 26, 2013) (finding that
plaintiff’s financial limitations did not excuse her failure to seek treatment when plaintiff
did not actively seek low-cost or free treatment). The ALJ also pointed to plaintiff’s
consumption of at least one six-pack of beer every day as evidence undermining
plaintiff’s claim that he could not afford the medical treatment his conditions required.
See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (finding plaintiff’s failure to seek
low-cost treatment and failure to forgo smoking three packs of cigarettes a day to help
finance treatment undercut his argument that he did not pursue treatment because he
could not afford it). The ALJ did not err in finding that plaintiff’s infrequent presentation
for medical treatment called into question plaintiff’s credibility.
The ALJ also considered plaintiff’s failure to comply with the recommendations
of his physicians. This, too, is a proper factor to consider when assessing credibility.
See SSR 96-7p, at *7 (“... statements may be less than credible... if the medical
reports or records show that the individual is not following the treatment as prescribed
and there are no good reasons for the failure.”); see also Guilliams v. Barnhart, 393
F.3d 798, 802 (8th Cir. 2005) (“A failure to follow a recommended course of treatment
also weighs against a claimant’s credibility.”). Doctors repeatedly advised plaintiff to

-14-

stop drinking alcohol.6 When plaintiff presented at the emergency room in April 2010,
he reported drinking at least a six-pack per day. In May 2010, he stated that he drank
two to three beers per day. At the hearing, plaintiff testified he has “maybe six”
alcoholic drinks per month. The ALJ reasonably concluded that plaintiff’s failure to
comply with treatment undermines plaintiff’s credibility.
The ALJ also noted that the medical records do not support plaintiff’s claims of
severe pain. Instead, those records show that plaintiff did not exhibit objective “pain
behaviors,” such as abnormal breathing, uncomfortable movement, elevated blood
pressure, or abnormal mood and affect. Treatment notes from April 16, 2010 and May
4, 2010 state that plaintiff was oriented and did not show signs of acute distress. The
ALJ also remarked on plaintiff’s sporadic work history, which the Eighth Circuit has held
“may indicate a lack of motivation to work rather than a lack of ability,” and may
negatively impact plaintiff’s credibility. Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th
Cir. 2001) (citing Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993)). The ALJ then
considered plaintiff’s inconsistent statements; for example, plaintiff told the ALJ he
could no longer play guitar, but told Dr. Baak that he could. “The ALJ may discredit a
claimant based on inconsistencies in the evidence.” Partee v. Astrue, 638 F.3d 860,
865 (2011).
Finally, the ALJ noted that plaintiff’s failure to take any prescription medications
suggests that plaintiff’s gout is not disabling as alleged. “Conservative treatment of
pain through over-the-counter medication and limited use of prescription medication
can be inconsistent with a claimant’s allegations of disabling pain.” Sangel v. Astrue,
785 F.Supp.2d 757, 776-77 (N.D. Iowa 2011) (citing Moore v. Astrue, 572 F.3d 520,
6

Gout flares are brought on by the ingestion of alcohol. See Arthritis Health Center:
Gout, WebMD, available at http://arthritis.webmd.com/tc/gout-cause.

-15-

524-25 (8th Cir. 2009)). Plaintiff claims that he is allergic to his prescribed medications,
and therefore his failure to take those medications is justified. Plaintiff testified that
Mobic made his feet numb, Allopurinol caused his throat to swell shut, Uloric gave him
a rash, and steroids caused rapid and severe weight gain. (Tr. 302). Considering
plaintiff’s alleged side effects, the Court cannot say that plaintiff’s failure to take
prescription medications, alone, detracts significantly from his credibility. However, the
ALJ’s credibility assessment is amply supported by the other evidence on the record.
The ALJ considered the appropriate factors before discounting plaintiff’s
subjective complaints, and reached a credibility determination that is supported by
substantial evidence. Accordingly, the Court will defer to the ALJ’s adverse credibility
determination.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by plaintiff in his brief in
support of complaint [#16] is denied.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 8th day of January, 2014.
-16-