Eberhart v. Colvin

Filing 23

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accord with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on August 13, 2014. (MCB)

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

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Case No. 4:13CV940 CDP

MEMORANDUM AND ORDER
This is an action for judicial review of the Commissioner’s decision denying
Marcus Eberhart’s application for disability insurance benefits under Title II of the
Act, 42 U.S.C. §§ 401 et seq., and for supplemental security income (SSI) benefits
based on disability under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et
seq. Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g) and 1383(c)(3),
provide for judicial review of a final decision of the Commissioner. Eberhart claims
he is disabled because of stents, high blood pressure, diabetes, and high cholesterol.
Because I find that the decision denying benefits was supported by substantial
evidence, I will affirm the decision of the Commissioner.
Procedural History
Eberhart filed his applications for benefits on August 25, 2009. He alleges
disability beginning July 15, 2007. On March 28, 2011, an ALJ issued a decision

that Eberhart was not disabled. The Appeals Council of the Social Security
Administration (SSA) remanded his case for further consideration and a new
decision on September 1, 2011. On March 26, 2012, following a hearing, the ALJ
again concluded that Eberhart was not disabled. The Appeals Council denied his
request for review on April 9, 2013. Therefore, the decision of the ALJ stands as the
final decision of the Commissioner.
Evidence Before the Administrative Law Judge
Application for Benefits
In his application for benefits, Eberhart stated that he was born in 1964 and
has a high school education, plus two years of college. (Tr. 193, 245). He is 6’3”
tall and weighs 265 pounds. (Tr. 238). Eberhart also completed an Adult Function
Report in conjunction with his application for benefits on September 21, 2009. In it,
he described his daily activities as taking a shower and medication, then preparing
his meals for the day. He states, “I’m also very depression because I’m not able to do
what I used to do.” His teenage son helps with household chores. Eberhart cleans
house, does laundry, and mops and sweeps some, but his chest hurts and he gets
short of breath. Eberhart shops, pays bills, and handles money. He reads, goes to
church and sporting events, watches movies, and visits friends and family, but he can
no longer play sports or lift weights. Eberhart claims his medication causes light
headedness. He has trouble lifting, squatting, bending, standing, walking, sitting,
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kneeling, talking, climbing stairs, seeing, remembering, completing tasks,
concentrating, understanding, using his hands, and with sexual activity. Eberhart can
walk half a block before needing to rest for 15 minutes. He follows directions and
gets along with authority figures, but he does not handle stress well. Eberhart
“fear[s] [his] health [will] cause [him] to have heart surgery . . and [he] may die.”
(Tr. 261-68).
Medical Records
Eberhart was seen at St. Louis ConnectCare cardiology on March 5, 2009, for
evaluation. He denied any chest pain or shortness of breath. The clinical impression
was coronary artery disease - stable and status post stenting. (Tr. 319-20).
Eberhart was given a radionuclide cardiac stress and rest test on April 1, 2009.
The clinical impression was mild to moderate mycardial ischemia on the lateral,
inferolateral wall and a 41 % ejection fraction of the left ventricle. (Tr. 317). He
was also given an exercise stress test, which was positive for ischemia. During the
test, Eberhart was given nitroglycerin for elevated ST changes. (Tr. 318).
Eberhart had a follow-up visit at St. Louis ConnectCare on May 7, 2009, to
discuss his stress test results. He denied any chest pain or shortness of breath. (Tr.
315).
On June 5, 2009, Eberhart underwent a cardiac catheterization by Alan J,
Tiefenbrunn, M.D., for reevaluation of coronary artery disease. It was noted that
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Eberhart had undergone a bare metal stenting of the left anterior descending coronary
artery, the diagonal branch, and circumflex coronary artery in October of 2008. His
medical history also included diabetes, elevated lipids, and a positive family history
for premature coronary artery disease. Eberhart presented with increasing symptoms
of dyspnea on exertion. Dr. Tiefenbrunn found an elevated left ventricular end
diastolic pressure, with the left ventricle dilated and thick walled with global
hypokinesis and an ejection fraction of 40%. The stented segments of the left
anterior descending coronary artery, the diagonal branch, and the circumflex vessel
were free of high grade restenosis, but Dr. Tiefenbrunn found new high grade
segmental narrowing involving the origin of the circumflex coronary artery and its
mid portion. Dr. Tiefenbrunn determined that these lesions were amenable to
percutaneous revascularization. (Tr. 370).
Eberhart was admitted to Barnes Jewish Hospital on August 6, 2009, for chest
pain and non ST elevation myocardial infarction. Eberhart reported a burning
sensation in his chest, lightheadedness, and some shortness of breath while watching
television. He had no paroxysmal nocturnal dyspnea, no orthopnea, no sycope, and
no palpitations. Eberhart reported that he quit smoking about one year ago.
Examination revealed blood pressure of 140/82 and a heart rate of 74. He was noted
to be pleasant and overweight, with regular breathing rate and rhythm, clear lungs, a
soft, nontender abdomen, and no peripheral edema in his extremities. Eberhart was
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successfully given two drug eluting stents. His lipids were noted to be within
appropriate limits, but he was advised to continue on a statin and try to include his
HDL component and drop his LDL component. Eberhart’s diabetes was noted to be
under control, but his hypertension was still elevated and required continued use of a
beta blocker and ace inhibitor. (Tr. 327-29).
While in the hospital, Eberhart underwent a cardiac catheterization. The
diagnostic impressions were complex 90% ostial circumflex, 70% mid circumflex,
and 99% subtotal occlusion of the distal corcumflex/LPL system, with status-post
successful PTCA/ stent placement with two drug-eluting Xience V stents. It was
recommended that Eberhart take aspirin indefinitely and plavix for at least a year.
(Tr. 332-34).
Eberhart was evaluated by the Cardiovascular Division of Washington
University’s School of Medicine on August 24, 2009. He was noted to have
coronary artery disease, hypertension, hyperlipidemia, obesity, and a strong family
history of premature coronary artery disease. Eberhart had increased exertional
dyspnea, but his chest pain and shortness of breath had markedly improved, with no
orthopnea, PND, lightheadedness, syncope, or palpitations since August 6, 2009.
Eberhart reported shortness of breath during ambulation and rare nighttime chest
symptoms that disappeared as soon as he sat up. Physical examination was normal,
with regular heart rate and rhythm and no peripheral edema in his extremities. The
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clinical impression was stable coronary artery disease with three drug-eluting stents
for his significant LAD and circumflux disease, appropriate blood pressures,
controlled diabetes, and a significantly decreased LDL. It was also noted that
Eberhart had stopped smoking. Diet and exercise strategies were discussed with
him, and it was suggested that he try cardiac rehabilitation. (Tr. 354-55).
Eberhart had a follow-up visit with St. Louis ConnectCare cardiology on
November 23, 2009. He was noted as having coronary artery disease with multiple
stents, dyspnea and fatigue, high blood pressure, obesity, and diabetes, but no angina
or congestive heart failure. Eberhart was advised to exercise regularly. (Tr. 427-28).
Eberhart underwent a stress test/rest study by St. Louis ConnectCare on
January 27, 2010. The impression was a very minimal, subtle, equivocal degree of
myocardial infraction at the distal anterior and posterolateral wall. The ejection
fraction of the left ventricle was estimated at 56%, with no hypokinesia, dyskinesia,
or akinesia of wall motion of the ventricle. (Tr. 465). During a follow-up visit on
February 8, 2010, the results of the stress test were discussed with him. No further
testing was ordered, but Eberhart was advised to diet and engage in gradual aerobic
exercise. (Tr. 466-67).
Treatment records from Washington University’s School of Medicine dated
April 23, 2010, indicate that Eberhart enrolled in a study called “Cardiac Risk
Markers and Unremitting Depression in Acute Coronary Syndrome.” The stated
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purpose of the study was to determine if treating depression in cardiac patients
improved other medical risk markers. (Tr. 459). According to Iris Csik, a licensed
clinical social worker, Eberhart participated in the study from April through August
of 2010. As part of the study, Eberhart met with Ms. Csik, LCSW, for 13 in-person
cognitive behavior therapy sessions. At the time of his enrollment, Eberhart’s Beck
Depression Inventory score was 36, which Ms. Csik stated was indicative of severe
depression. In addition to his therapy sessions, Eberhart was also given
antidepressant medication for eight weeks as part of the study treatment. In Ms.
Csik’s opinion, Eberhart’s depression “had not fully remitted” at the conclusion of
the study. Therefore, she recommended that Eberhart seek additional treatment for
depression from his physician and community resources. (Tr. 472-73).
Eberhart missed his appointment on August 16, 2010, but was seen by Joseph
Ruwitch, M.D., on October 26, 2010, for cardiac follow-up and chest pain. Eberhart
described having left-sided, dull, achy, chest pain that radiated down his arm. His
pain level was three out of 10. Eberhart said he had some sweating, but no nausea or
vomiting. Eberhart experienced the pain and shortness of breath during exertion. He
also reported an intentional 12 pound weight loss. Upon examination, Eberhart’s
chest was clear and his heartbeat was regular with no murmur. There was no edema
in his extremities. An electrocardiogram revealed normal sinus rhythm. Dr.
Ruwitch’s assessment was high blood pressure controlled, coronary artery disease
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status post stents, non-specific dyspnea, diabetes mellitus treated with oral
medication, lipid disorder, and disability applicant. Eberhart’s anti-depressant
prescription was renewed, and Eberhart was “reassured.” Dr. Ruwitch recommended
against stress scanning and told Eberhart to schedule a six month follow-up visit.
(Tr. 582-83).
In connection with his claim for benefits, Eberhart was examined by
consultative physician Saul Silvermintz, M.D., on November 23, 2010. Dr.
Silvermintz identified Eberhart’s chief complaints as heart with six stents, high blood
pressure, diabetes, and high cholesterol. Upon examination, Eberhart’s lungs were
clear, his cardiac rhythm and rate were regular with no thrills, murmurs, or rubs,
there was no swelling or edema in his extremeties, and his gait was normal. Eberhart
could walk on his heels and toes, and he got on and off the examination table without
difficulty. Eberhart had no problem with fine finger movements. Dr. Silvermintz’s
impression was hypertension controlled with evidence of end organ damage, status
post myocardial infarction with stent placement, history of elevated cholesterol, and
diabetes mellitus type 2 under fairly good control. (Tr. 479-81).
Dr. Silvermintz also completed a medical source statement of ability to do
work-related activities (physical). He indicated that Eberhart could occasionally lift
and carry up to 10 pounds, sit for eight hours at a time without interruption, stand for
30 minutes at a time, and walk for 10-15 minutes. Dr. Silvermintz opined that, in an
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eight hour work day, Eberhart could sit for eight hours, stand for two hours, and
walk for one hour. Eberhart could occasionally reach and operate foot controls,
frequently handle or finger, continuously feel, and never push or pull. Dr.
Silvermintz believed that Eberhart should never crawl or climb stairs, ramps, ladders,
or scaffolds, and that he should only occasionally balance, stoop, kneel, or crouch.
As for environmental limitations, Eberhart should never be exposed to unprotected
heights or extreme cold, and should only occasionally be exposed to extreme heat,
moving mechanical parts, humidity, dust, odors, fumes, and pulmonary irritants. Dr.
Silvermintz stated that Eberhart could frequently operate a motor vehicle and be
exposed to vibrations. Dr. Silvermintz opined that Eberhart could shop, travel
without a companion, ambulate without assistive devices, walk a block at a
reasonable pace on rough surfaces, use public transportation, climb a few stairs
without the use of a hand rail, prepare meals and feed himself, groom himself, and
handle paper files. Finally, Dr. Silvermintz indicated that Eberhart’s limitations had
not lasted or would not last for 12 consecutive months. (Tr. 482-87).
Eberhart was also evaluated by licensed psychologist Summer Johnson in
connection with his claim for benefits. Ms. Johnson identified Eberhart’s chief
complaints as depression and a possible learning disability. Eberhart told her he had
problems accepting that he was depressed. He reported mood swings, occasional
crying spells while watching the news, and feeling sad on some days for no reason.
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Eberhart stated that his head hurt and that he felt depressed over bad news or
thinking about things he can no longer do or control. Eberhart was no longer
interested in working out, socializing, and sexual activity. Eberhart reported trouble
sleeping and feelings of guilt and low self-esteem. His appetite decreased and he lost
about 30 pounds in two months. Eberhart admitted that he previously had thoughts
of self-harm and homicidal ideation. Ms. Johnson noted that Eberhart was currently
on an anti-depressant and was using cue cards to improve his mood. Eberhart
believed the medications only worked sometimes. Eberhart disclosed a family
history of mental illness, including an attempted suicide by a sibling. (Tr. 493-94).
Ms. Johnson observed Eberhart to have adequate hygiene and grooming, an
alert facial expression, good eye contact, and normal motor activity, posture, and
gait. Eberhart was able to relate appropriately to Ms. Johnson and was cooperative.
His affect was bright and he was fully oriented. There was no evidence of
preoccupations, thought disturbances, perceptual distortions, delusions,
hallucinations, or current suicidal or homicidal ideation. Eberhart’s judgment and
insight were good, and he was able to complete serial 3s at a moderate pace. His
proverb interpretation was poor. Eberhart scored within normal limits on the Trail
Making Test, but his results on the Minnesota Multiphasic Personality Inventory test
were invalid due to his overreporting of symptoms. Eberhart demonstrated good
concentration, good persistence, and a moderately fast pace during the examination.
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Ms. Johnson diagnosed Eberhart with major depressive disorder, recurrent, mild,
with an Axis V GAF score of 67. Ms. Johnson believed that Eberhart was
experiencing mild problems with his mood, and that his prognosis was good with
appropriate intervention. (Tr. 495-98).
After examining Eberhart, Ms. Johnson completed a medical source statement
of ability to do work-related activities (mental). She opined that Eberhart would
have mild difficulty carrying out complex instructions, but otherwise would have no
difficulty understanding, remembering, and carrying out simple instructions, making
simple work-related decisions, understanding and remembering complex
instructions, and making complex work-related decisions. Ms. Johnson stated that
Eberhart had a slight impairment in immediate memory and manipulation of
information which might impact his ability to carry out complex instructions. She
found mild difficulties with Eberhart’s ability to interact appropriately with the
public, supervisors, co-workers, and with his ability to respond appropriately to work
situations and changes in routine as she believed Eberhart was isolative and kept to
himself. Ms. Johnson agreed with Dr. Silvermintz that Eberhart could engage in
daily activities and that his limitations had not lasted or were not expected to last for
12 months. (Tr. 499-501).
Eberhart next saw Dr. Ruwitch on April 5, 2011, for chest pain. Eberhart told
Dr. Ruwitch that he had remitting and relapsing sharp left sided chest pain which
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occurred four to six times per day and lasted 10 to 15 minutes. He also complained
of some shortness of breath, exertional dyspnea after walking, and edema. Eberhart
denied any wheezing or cough. Dr. Ruwitch’s examination of Eberhart yielded
normal results. Dr. Ruwitch prescribed metoprolol succinate and “reassured
[Eberhart] at length.” Dr. Ruwitch believed that Eberhart’s chest pain was primarily
“extra cardiac in origin.” (Tr. 584-86).
Eberhart followed up with Dr. Ruwitch on May 16, 2011. Eberhart reported
being constantly fatigued. He was still experiencing chest pain but described it as
“maybe 50% improved.” Eberhart told Dr. Ruwitch he was scared because of his
stents and that he had ongoing depression. Dr. Ruwitch examined Eberhart, and the
results were normal. Dr. Ruwitch assessed coronary artery disease status post
stents/angina ongoing with improvement, high blood pressure controlled, obesity,
and anxiety syndrome. Dr. Ruwitch noted that the source of Eberhart’s chest pains
was an “unclear issue” and that he was going to “get more aggressive with
medications” now as a result. Dr. Ruwitch continued Eberhart’s prescription for
metoprolol succinate, prescribed lisinopril, and ordered a stress test. (Tr. 589-90).
Eberhart underwent a myocardial perfusion imaging study on June 29, 2011.
Findings revealed normal activity in the left ventricular cavity with a small perfusion
abnormality of mild severity in the inferoapical wall in both stress and rest images.
The left ventricular ejection fraction was estimated at 54%. No dyskinesia or
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hypokinesia was demonstrated. Small infarct was to be considered in the
apiocoinferior wall. (Tr. 593-94).
Dr. Ruwitch completed a cardiac residual functional capacity questionnaire in
connection with Eberhart’s application for benefits on July 19, 2011. He stated that
Eberhart had been his patient for two years. Dr. Ruwitch diagnosed Eberhart with
coronary artery disease with multiple cardiac stents, high blood pressure, and
diabetes. He listed Eberhart’s symptoms as chest pain and fatigue and indicated that
Eberhart also experienced occasional atypical non cardiac chest pain. He believed
that Eberhart’s symptoms were stress-related, but that he could tolerate moderate
work stress. Dr. Ruwitch also noted that Eberhart’s physical symptoms caused
chronic anxiety and depression. Dr. Ruwitch indicated that Eberhart’s cardiac
symptoms would only seldom interfere with his attention and concentration. Dr.
Ruwitch believed that Eberhart’s impairments lasted at least twelve months, and his
prognosis was guarded. As for Eberhart’s functional limitations, Dr. Ruwitch opined
that Eberhart could walk one block without rest, sit for two hours, stand for 10
minutes without rest, and occasionally lift 20 pounds, twist, stoop, crouch, and climb
stairs and ladders. Dr. Ruwitch believed that Eberhart should avoid concentrated
exposure to extreme temperatures and conditions. He believed that Eberhart would
infrequently need to take unscheduled breaks of 15 minutes during an eight-hour
work day. Finally, Dr. Ruwitch said that Eberhart’s impairments were likely to
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produce good days and bad days, resulting in his absence from work about two days
per month. (Tr. 634-40).
Eberhart went to St. Louis ConnectCare on July 19, 2011, and saw Dr.
Ruwitch for his stress test results. During that visit he complained of chest pain,
shortness of breath after walking half a block, sweating with diapharesis lasting 2030 minutes, morning nausea, and evening palpitations. (Tr. 630). Dr. Ruwitch
classified these as the “same variety of complaints.” Dr. Ruwitch “doubt[ed] [that]
chest pains are of cardiac origin now, in lack of ischemia confirmation.” Therefore,
he “reassured [Eberhart] liberally” with the results of the stress test. Dr. Ruwitch
encouraged Eberhart to gradually increase his exercise and concluded that Eberhart’s
medications were in order. No further tests were ordered. (Tr. 595-96).
Eberhart went to the Grace Hill Medical Clinic on September 13, 2011, for
diabetes and heartburn. His weight at that time was 264 pounds, resulting in a BMI
of 32.56. (Tr. 576). He returned to the clinic on September 26, 2011, complaining of
dry, itching plantar skin and burning pain with numbness. Examination was within
normal limits except for some dry skin on his feet. Eberhart was given some creams
for the itching and dryness. (Tr. 577-78).
Eberhart returned for a follow-up visit with Dr. Ruwitch on October 4, 2011.
Eberhart said his chest pains were “a little lighter . . . like fluttering.” He also
complained of leg pains, which were reportedly diabetic symptoms. Dr. Ruwitch
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noted that Eberhart was on an anti-depressant and “very motivated to have multiple
complaints.” Eberhart’s physical examination was normal, except for “dirty and
scaly feet.” Dr. Ruwitch warned Eberhart to take care of his feet and reassured him
about his heart and legs. Eberhart was urged to exercise. (Tr. 598-600).
Eberhart saw Dr. Ruwitch again on January 9, 2012. His assessment was
coronary artery disease, essential hypertension, and hyperlipidemia. Dr. Ruwitch
examined Eberhart, and found normal heart sounds and pulses, no edema, and
normal chest sounds. Eberhart was counseled to lose weight. Dr. Ruwitch noted no
cardiac changes and stated that chest pains were non cardiac. (Tr. 603-06).
Testimony
During a hearing held before the ALJ on February 22, 2012, Eberhart
testified that his medications make him nauseous and tired. Eberhart sees a doctor
for numbness in his right side, chest pain, and shortness of breath. Eberhart’s
fingers tingle and he has a burning sensation in the right side of his body. He has
chest pains daily, from five to eight times per day, with shortness of breath and an
irregular heart beat. When this happens, he tries to calm down and then takes an
extra 325 Bayer aspirin if needed. Eberhart vomits every morning when he wakes
up. He takes three to five naps daily. (Tr. 29-38).
Annie E. Winkler, M.D., also testified at the hearing as a non-examining
consultative physician. After reviewing the medical records, Dr. Winkler opined
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that Eberhart suffers from diabetes, hypertension, and coronary artery disease. She
also testified that “he does appear to have some ongoing psychological issues and
there’s been concern that his complaints of chest pain have really been more
related to anxiety and medication rather than from cardiac basis.” (Tr. 39-40). Dr.
Winkler believed that Eberhart should be limited to lifting/carrying 20 pounds
occasionally, 10 pounds frequently, and standing or walking no more than two
hours in an eight hour day with no limitations on sitting. According to Dr.
Winkler, Eberhart should only take stairs, bend, stoop, crouch, and crawl
occasionally. He should never climb ladders, ropes, or scaffolds, and he should
avoid concentrated exposure to cold, heat, wetness, humidity, and unprotected
heights. (Tr. 40). When asked about any limitations based on Eberhart’s
psychological problems, Dr. Winkler stated that “it does appear that his
psychological problems are pretty, are interfering with daily functioning.” She
believed that his anxiety might create interference with work duties. (Tr. 41). Dr.
Winkler was then asked if she agreed with Dr. Ruwitch’s assessment of Eberhart’s
RFC. Winkler stated that she did, except she believed that Eberhart should not
climb ladders, ropes, or scaffolds, and that his cardiac symptoms would not result
in unscheduled breaks. (Tr. 41). Dr. Winkler clarified that any unscheduled
breaks might be related to psychological problems, but that she was hesitant to
make such a diagnosis as she was not a mental health professional. (Tr. 42).
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However, Dr. Winkler explained that any claimed fatigue and chest pain were not
due to cardiac issues, even though they might be related to anxiety or
psychological issues. (Tr. 42-43).
Vocational expert Elvira Gonzalez also testified at the hearing. The ALJ
asked the vocational expert if there were any jobs that a hypothetical individual
with Eberhart’s education, training, and work experience could perform if that
individual were also limited by an ability to lift 20 pounds occasionally and 10
pounds frequently, stand/walk for two hours out of eight, sit six hours out of eight,
climb stairs and ramps occasionally and a need to avoid extreme temperatures and
hazards and change positions frequently. Ms. Gonzalez responded that such an
individual could work as an information clerk or call out operator. Ms. Gonzalez
further testified that an individual with those limitations would be unable to work
as a call out operator if the mental limitations were added to the hypothetical:
understanding, remembering, and carrying out simple instructions; making simple
work related decisions; adapting to simple work changes; and, performing work at
a normal pace without production quotas. However, that individual would still be
able to work as an information clerk or a surveillance system monitor. Finally, the
ALJ added the additional limitation that the individual would have at least two
absences per month due to physical or mental limitations. With that added
limitation, the vocational expert testified that “at that rate absenteeism the person
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would have great difficulty maintaining employment . . . .” (Tr. 44-49).
Eberhart’s attorney posed the following hypothetical question to Ms.
Gonzalez:
Could I ask you to assume a hypothetical individual of Mr. Eberhart’s
age, education and work experience who could, has the capacity to
walk about a block without rest, sit about two hours before he has to
get up, and stand about 10 minutes and then he’d need to sit down, he
would have unscheduled breaks lasting 15 minutes and these would
be unscheduled, unpredictable so he would be off task, at least once
or twice a day, this would happen. With those restrictions, would he
be able to do the info clerk or surveillance system monitor?
(Tr. 49-50). Ms. Gonzalez responded, “No.” (Tr. 50).
Legal Standard
A court’s role on review is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. Gowell
v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence is less than a
preponderance, but is enough so that a reasonable mind would find it adequate to
support the ALJ’s conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000). As long as there is substantial evidence on the record as a whole to support
the Commissioner’s decision, a court may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, id., or
because the court would have decided the case differently. Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992). In determining whether existing evidence is

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substantial, a court considers “evidence that detracts from the Commissioner’s
decision as well as evidence that supports it.” Singh v. Apfel, 222 F.3d 448, 451
(8th Cir. 2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
1999)). Where the Commissioner’s findings represent one of two inconsistent
conclusions that may reasonably be drawn from the evidence, however, those
findings are supported by substantial evidence. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001) (internal citation omitted).
To determine whether the decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) the credibility findings made by the Administrative Law Judge;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff’s subjective complaints relating to exertional and
non-exertional impairments;
(5) any corroboration by third parties of the plaintiff’s impairments;
and
(6) the testimony of vocational experts, when required, which is based
upon a proper hypothetical question.
Brand v. Secretary of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th
Cir. 1980).
Disability is defined in social security regulations as the inability to engage

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in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months. § 42 U.S.C. 416(i)(1); § 42 U.S.C. 1382c(a)(3)(A); § 20 C.F.R.
404.1505(a); 20 C.F.R. 416.905(a). In determining whether a claimant is disabled,
the Commissioner must evaluate the claim using a five step procedure.
First, the Commissioner must decide if the claimant is engaging in
substantial gainful activity. If the claimant is engaging in substantial gainful
activity, he is not disabled.
Next, the Commissioner determines if the claimant has a severe impairment
which significantly limits the claimant’s physical or mental ability to do basic
work activities. If the claimant’s impairment is not severe, he is not disabled.
If the claimant has a severe impairment, the Commissioner evaluates
whether the impairment meets or exceeds a listed impairment found in 20 C.F.R.
Part 404, Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix
1, the Commissioner will find the claimant disabled.
If the Commissioner cannot make a decision based on the claimant’s current
work activity or on medical facts alone, and the claimant has a severe impairment,
the Commissioner reviews whether the claimant can perform his past relevant
work. If the claimant can perform his past relevant work, he is not disabled.
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If the claimant cannot perform his past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, the Commissioner declares the claimant disabled. § 20 C.F.R.
404.1520; § 20 C.F.R. 416.920.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the plaintiff, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects
of medication; and (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ’s finding. Casey v. Astrue 503 F.3d 687, 696 (8th Cir. 2007). However, the
ALJ retains the responsibility of developing a full and fair record in the non-

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adversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
The ALJ’s Findings
The ALJ issued his decision that Eberhart was not disabled on March 26,
2012. He found that Eberhart had the severe impairments of diabetes mellitus,
hypertension, coronary artery disease, and hyperlipidemia. The ALJ found that
Eberhart retained the residual functional capacity to perform light work, in that he
could lift 20 pounds occasionally and 10 pounds frequently, stand for two hours
and sit for six hours out of an eight hour workday, and that he needed a sit/stand
option with the ability to change positions frequently, could only occasionally
climb ladders, ropes, and scaffolds, kneel, crouch, or crawl, and that he should
avoid concentrated exposure to extreme cold and heat, wetness, humidity, and
hazards such as heights. In fashioning Eberhart’s RFC, the ALJ determined that
his impairments could be expected to produce his alleged symptoms; however, he
concluded that Eberhart’s statements concerning the intensity, persistence, and
limiting effects of those symptoms were not entirely credible to the extent they
were inconsistent with his RFC. The ALJ relied on the vocational expert’s
testimony to determine that Eberhart was unable to perform his past relevant work
but that he could work as an information clerk and call-out operator. Therefore, he
concluded that Eberhart was not disabled.
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Discussion
Eberhart contends that the ALJ’s RFC was not based upon substantial
evidence. RFC is defined as “what [the claimant] can still do” despite his
“physical or mental limitations.” 20 C.F.R. § 404.1545(a). “When 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, 703 (8th Cir. 2001). The Eighth Circuit has noted the ALJ
must determine a claimant’s RFC based on all of the relevant evidence, including
the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations. McKinney v. Apfel, 228 F.3d 860,
863 (8th Cir. 2000) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
The record must include some medical evidence that supports the RFC. Dykes v.
Apfel, 223 F.3d 865, 867 (8th Cir. 2000).
Eberhart argues that the RFC is not supported by some medical evidence
because the ALJ failed to include absenteeism as one of Eberhart’s limitations. In
the cardiac residual functional capacity assessment, Dr. Ruwitch indicated that
Eberhart’s impairments were likely to produce good days and bad days, resulting
in his absence from work about two days per month. (Tr. 634-40). While Dr.
Winkler did not specifically address this limitation, she testified that she disagreed
with Dr. Ruwitch’s assessment in that Eberhart’s cardiac symptoms would not
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result in unscheduled breaks. (Tr. 41). Dr. Winkler then clarified that any
unscheduled breaks might be related to psychological problems, but that she was
hesitant to make such a diagnosis as she was not a mental health professional. (Tr.
42). However, she thought Eberhart’s anxiety might create interference with work
duties. (Tr. 41). The vocational expert testified that being absent two days per
month would make it very difficult to maintain employment. (Tr. 44-49).
“‘It is the ALJ’s function to resolve conflicts among the various treating and
examining physicians.’” Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006)
(quoting Vandenboom v. Barnhart, 421 F.3d 745, 749-50 (8th Cir. 2005) (internal
marks omitted)). The opinions and findings of the plaintiff’s treating physician
are entitled to “controlling weight” if that opinion is “‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.’” Prosch v. Apfel,
201 F.3d 1010, 1012-13 (8th Cir. 2000) (quoting 20 C.F.R. § 404.1527(d)(2)).
However, the opinion of the treating physician should be given great weight only
if it is based on sufficient medical data. Leckenby v. Astrue, 487 F.3d 626, 632
(8th Cir. 2007) (holding that a treating physician’s opinion does not automatically
control or obviate need to evaluate record as whole and upholding the ALJ’s
decision to discount the treating physician’s medical-source statement where
limitations were never mentioned in numerous treatment records or supported by
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any explanation). “Although a treating physician’s opinion is entitled to great
weight, it does not automatically control or obviate the need to evaluate the record
as a whole.” Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
Here, the ALJ properly formulated Eberhart’s RFC only after considering
all of the relevant evidence, including the medical evidence. The ALJ discussed
at length the opinions of Eberhart’s treating cardiologist, along with those of Dr.
Winkler and Dr. Silvermintz, when formulating Eberhart’s RFC. He gave “great
weight” to the opinions of Dr. Ruwitch and Dr. Winkler as consistent with each
other and the medical evidence of record, but he was not required to include every
limitation set out by Dr. Ruwitch in his RFC determination. In fact, the ALJ
adopted most of the limitations set out by Dr. Ruwitch when deciding that he
could perform a range of light work. However, he rejected those limitations which
were inconsistent with the record as a whole, and it was not error for him to do so.
For example, the ALJ agreed with Dr. Winkler’s more restrictive limitation on
climbing ropes, ladders, or scaffolds, and included that restriction in the RFC. He
also agreed with Dr. Winkler, not Dr. Ruwitch, that Eberhart would not need to
take unscheduled breaks due to his physical limitations. The ALJ found that Dr.
Winkler’s opinion was actually consistent with Dr. Ruwitch’s treatment notes
which stated that Eberhart’s chest pain was due to anxiety or depression and not
cardiac in nature, and that finding is supported by substantial evidence on the
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record as a whole. Although Dr. Ruwitch does not specify whether he believed
Eberhart’s absenteeism would be for physical or mental reasons, he provides no
clinical and laboratory findings supporting this opinion as to either type of
impairment.1 No other physician or mental health professional opined that
Eberhart would suffer from absenteeism.
When the evidence is considered as a whole, I find that the ALJ did not
substantially err in refusing to include absenteeism as a limitation in his RFC. The
ALJ properly found that Eberhart’s mental impairment was not severe after
consideration of all the medical evidence of record, including that of the
examining consultative psychologist.2 In addition Dr. Ruwitch opined that
Eberhart was capable of tolerating work stress and that his experience of cardiac

1

When the assessment as a whole is considered with Dr. Ruwitch’s treatment notes, it
appears that Dr. Ruwitch believed any absenteeism would be caused by psychological factors,
not physical ones.
2

Eberhart does not argue that the ALJ erred when he found Eberhart’s depression was not
a severe impairment. To the extent Eberhart’s throw-away line that “the decision fails to
articulate a legally sufficient rationale relative to [his] mental impairments” could be construed as
an argument that the ALJ should have included mental limitations in his formulation of the RFC,
it is rejected. The ALJ discussed the medical evidence of Eberhart’s depression at length and
concluded that it was not severe. This fnding is well supported by the opinion of Ms. Johnson,
who concluded that Eberhart had only mild mental limitations, and the treatment records of Dr.
Ruwitch. In addition, the ALJ explained why he rejected Dr. Ruwitch’s opinion with respect to
the unscheduled break limitation caused by non cardiac chest pain. He stated that Dr. Ruwitch
was not a psychologist or psychiatrist, and to the extent his opinion conflicted with that of the
mental health professional’s, it was rejected as not supported by medical evidence. The same
reasoning applies here to the extent that Dr. Ruwitch’s opinion regarding absenteeism is
attributable to Eberhart’s non cardiac chest pain, anxiety, or depression, and is well supported by
the record as a whole.
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symptoms, including a psychological preoccupation with his cardiac condition,
would only seldom interfere with his attention and concentration. On July 19,
2011, the same date that Dr. Ruwitch completed the cardiac residual functional
capacity assessment, Dr. Ruwitch expressed his doubt that Eberhart’s “chest pains
are of cardiac origin now, in lack of ischemia confirmation.” On October 4, 2011,
after his examination of Eberhart yielded normal results, Dr. Ruwitch noted that
Eberhart was on an anti-depressant and “very motivated to have multiple
complaints.” On January 9, 2012, Dr. Ruwitch again found no cardiac changes in
response to Eberhart’s complaints of chest pain and noted that the chest pains were
non cardiac. Ms. Johnson concluded that Eberhart had only mild limitations in his
ability to carry our complex instructions, interact appropriately with the public,
supervisors, and co-workers, and respond appropriately to usual work situations
and to changes in a routine work setting.
As for Eberhart’s physical impairments, the evidence shows that while
Eberhart underwent several stenting procedures, he responded well to treatment.
Eberhart was seen at St. Louis ConnectCare cardiology on March 5, 2009, for
evaluation post-stenting and denied any chest pain or shortness of breath. After a
cardiac stress and rest test on April 1, 2009, revealed mild to moderate mycardial
ischemia, Eberhart denied any chest pain or shortness of breath during his followup visit. Eberhart did undergo another stent placement on August 9, 2009, while
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hospitalized for chest pain and non ST elevation myocardial infarction, but during
his follow-up visit on August 24, 2009, his chest pain and shortness of breath had
markedly improved, with no orthopnea, PND, lightheadedness, syncope, or
palpitations. His physical examination at that time was normal, with regular heart
rate and rhythm and no peripheral edema in his extremities. A stress test/rest study
on January 27, 2010 revealed only a very minimal, subtle, equivocal degree of
myocardial infraction at the distal anterior and posterolateral wall. Despite
reporting chest paint to Dr. Ruwitch on October 26, 2010, Eberhart’s chest was
clear, his heartbeat was regular with no murmur, and there was no edema in his
extremities. An electrocardiogram revealed normal sinus rhythm. Dr.
Silvermintz’s consultative examination of Eberhart on November 23, 2010,
revealed clear lungs, regular cardiac rhythm and rate with no thrills, murmurs, or
rubs, and no swelling or edema. Eberhart’s examinations by Dr. Ruwitch on April
5, 2011, and May 11, 2011, were again normal despite Eberhart’s complaints of
increased chest pain. Dr. Ruwitch ordered a stress test on June 29, 2011, which
was normal with no dyskinesia or hypokinesia and confirmed his belief that
Eberhart’s chest pain was non cardiac in nature. Dr. Ruwitch examined Eberhart
in follow-up appointments on July 19, 2011, October 4, 2011, and January 9,
2012, and each time the results were normal despite Eberhart’s reported chest
pain.
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The opinion of the treating physician should be given great weight only if it
is based on sufficient medical data. Hacker v. Barnhart, 459 F.3d 934, 937 (8th
Cir. 2006) (holding that where a treating physician’s notes are inconsistent with
his or her RFC assessment, controlling weight is not given to the RFC
assessment); Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (holding
that opinions of treating doctors are not conclusive in determining disability status
and must be supported by medically acceptable clinical or diagnostic data)
(internal quotation marks and citation omitted). Here, Dr. Ruwitch’s conclusory
opinion regarding absenteeism is not entitled to great weight as it is inconsistent
with his treatment notes and the other, uncontraverted objective medical evidence
of record. See Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (an ALJ may
“discount or even disregard the opinion of a treating physician where other
medical assessments are supported by better or more thorough medical evidence,
or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.”) (internal quotation marks and citations omitted);
Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (holding that an ALJ may give
a treating doctor’s opinion limited weight if it is inconsistent with the record);
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (an ALJ is entitled to give less
weight to the opinion of a treating doctor where the doctor’s opinion is based
largely on the plaintiff’s subjective complaints rather than on objective medical
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evidence) (citing Vandenboom, 421 F.3d at 749).
The ALJ did not simply adopt a light work RFC wholesale. Instead, he
formulated Eberhart’s RFC after careful consideration of all the relevant evidence,
including the opinion of his treating cardiologist. Here, there is substantial
evidence in the record as a whole to support the ALJ’s determination that Eberhart
was capable of performing light work, with some restrictions that did not include
absenteeism. Because the ALJ’s RFC determination is supported by some medical
evidence and is properly based on the record as a whole, the ALJ did not err in
failing to include absenteeism as a limitation in his RFC.
Eberhart also argues that the ALJ’s decision should be reversed because the
hypothetical question posed to the vocational expert did not include absenteeism
as an impairment. “Testimony based on hypothetical questions that do not
encompass all relevant impairments cannot constitute substantial evidence to
support the ALJ’s decision.” Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.
1994). The vocational expert testified that a hypothetical individual with
Eberhart’s education, training, and work experience could perform work as an
information clerk or call out operator if that individual were also limited by an
ability to lift 20 pounds occasionally and 10 pounds frequently, stand/walk for two
hours out of eight, sit six hours out of eight, climb stairs and ramps occasionally
and a need to avoid extreme temperatures and hazards and change positions
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frequently. When questioned by Eberhart’s counsel, the vocational expert also
testified that being absent two days per month would make it very difficult to
maintain employment.
After engaging in a proper credibility analysis, the ALJ properly
incorporated into Eberhart’s RFC only those impairments and restrictions found
credible. See McGeorge v. Barnhart, 321 F.3d 766, 769 (8th Cir. 2003) (the ALJ
“properly limited his RFC determination to only the impairments and limitations
he found credible based on his evaluation of the entire record.”). It was not error
to exclude absenteeism from his hypothetical question to the vocational expert or
to disregard her response to counsel’s question as “[t]he 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.” Hinchey, 29 F.3d
at 432. For the reasons set out above, substantial evidence on the record as a
whole does not support a finding of absenteeism as one of Eberhart’s limitations.
As the ALJ’s question to the vocational expert incorporated the same limitations
as Eberhart’s RFC and was properly formulated, the expert’s testimony that
Eberhart could perform other work constitutes substantial evidence supporting the
ALJ’s decision that Eberhart is not disabled. See Cruze v. Chater, 85 F.3d 1320,
1323 (8th Cir. 1996) (“Testimony from a VE [vocational expert] based on a
properly phrased hypothetical question constitutes substantial evidence.”). I find
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that substantial evidence as a whole supports the ALJ’s decision to deny benefits
because Eberhart is not disabled.
Conclusion
Because substantial evidence in the record as a whole supports the ALJ’s
decision to deny benefits, I will affirm the decision of the Commissioner.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A separate Judgment in accord with this Memorandum and Order is entered
this date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 13th day of August, 2014.

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