Parker v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner denying SSI payments is AFFIRMED. (Doc. No. 15). Signed by Magistrate Judge Terry I. Adelman on 2/2/2015. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 4:13CV1926 TIA
MEMORANDUM AND ORDER
This action is before the Court for judicial review pursuant to 42 U.S.C. §§ 405(g) and
1631 (3) of the Social Security Act (“the Act”), of the final decision of the Commissioner of Social
Security (“Commissioner”) concluding that Claimant Mary Parker was not entitled to
Supplemental Security Income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et
seq. Claimant has filed a Brief in Support of her Complaint and the Commissioner has filed a
Brief in Support of the Answer. For the reasons set forth below, the decision of the
Commissioner shall be affirmed.
Claimant, who was born on November 2, 1963, filed her application for a SSI benefits
under Title XVI of the Act on November 23, 2010, alleging an onset date of December 6, 2010, 1
with disability due to chronic back and neck pain resulting from multiple auto accidents, recurrent
headaches, hypertension, and depression. (Tr. 12, 142-47, 158, 180.) On March 3, 2011, the
Claimant originally alleged a disability onset date of January 15, 2004, but subsequently
amended the onset date to December 6, 2010. (Tr. 12, 46, 142, 158).
Commissioner denied Claimant’s application at the administrative level. 2 Claimant then timely
filed a written request for a hearing before an Administrative Law Judge (“ALJ”). At a June 5,
2012 hearing Claimant and a vocational expert (VE) gave testimony.
On September 6, 2012, the ALJ issued her decision finding that Claimant was not disabled
within the meaning of the Act. (Tr. 12-23.) The ALJ found that Claimant suffered from the
severe impairments of migraine and depression but concluded that she did not have an impairment
or combination of impairments listed in or medically equal to one contained in 20 C.F.R. part 404,
subpart P, appendix 1. (Tr. 14, 16-17.) The ALJ also determined that Claimant retained the
Residual Functional Capacity (RFC) to perform a range of unskilled, light work. The ALJ further
concluded that Claimant had no past relevant work, but concluded on the basis of VE testimony
that her impairments would not preclude her from performing her past relevant work as a cashier
and that such positions exist in significant numbers in the national economy. (Tr. 18, 22-23.) On
August 29, 2013, the Appeals Council denied Claimant’s request for review (Tr. 1-4). Thus, the
ALJ’s decision stands as the “final decision” of the Commissioner subject to review by this Court
pursuant to 42 U.S.C. § 1383(c)(3).
On appeal Claimant argues that the ALJ improperly discounted Claimant’s testimony
concerning her subjective complaints, failed to cite to “some” medical evidence to support the
RFC determination and to give substantial weight to the opinions of an examining physician and a
treating physician. In addition, Claimant contends that the hypothetical question posed to the VE
failed accurately to capture the consequences of Claimant’s impairments.
Claimant’s appeal in this case proceeded directly from the initial denial to the ALJ level
because Missouri is one of several test states participating in modifications to the disability
determination procedures that eliminate the reconsideration step in the administrative appeals
process. See 20 C.F.R. § 416.1406 (2013).
In response, the Commissioner asserts that the ALJ properly evaluated Claimant’s
credibility and included all credible limitations in her RFC determination, that the ALJ did not err
in failing to give significant weight to the opinions of an examining physician and a treating
physician, and that the hypothetical question posed accurately reflected Claimant’s RFC as
determined by the ALJ.
Work History, Function and Disability Reports and Application Forms
In the Work History Report she completed on May 10, 2010, Claimant indicated that she
had gone to school in 2003 to become a nail technician but dropped out due to her “condition.”
Thereafter, she had worked for brief stints bussing tables and as a cashier. No work history was
reported for the period after June, 2008. (Tr. 220)
Claimant’s Function and Disability reports reflected that she could not stay on her feet for
more than 30 minutes, could not get in and out of a bath tub or go up and down stairs. Claimant
reported that she prepared a sandwich or frozen meal twice a day but was unable to stand long
enough to do any other cooking. Claimant also stated that she did some house work and laundry
once a week but had to sit to rest frequently, left her home very little, did not drive, and shopped for
groceries twice a month. Claimant further indicated that did not have a savings or checking
account but paid her bills and could make change. She stated that she could walk about ten
minutes without a rest, and lift ten pounds, but that squatting, bending, standing, reaching and
walking were all difficult for her due to her back and neck pain. (Tr. 159-167, 177-213.) The
Report included Claimant’s medication record, dated March 13, 2012, lists the following
medications: Cyclobenzaprine, Famotidine (Pepcid), “But/APAP,” Buspirone, Pravastatin,
Tramadol, Metoprolol, and extra strength acetaminophen. (Tr. 219.)
On April 28, 2004, Claimant was seen by Dr. Julio Iglesias, M.D. who noted that Claimant
had been trying to get appointments at the neurology and pain management clinics but was having
difficulty affording her care and medicine. (Tr. 241.) On September 9, 2004, Claimant saw Dr.
Iglesias for complaints of lower back pain. Dr. Iglesias prescribed Soma, Xanax, and Lortab.
(Tr. 238.) At a November 8, 2004 visit with Dr. Iglesias, Claimant complained of headache and
back pain. (Tr. 236.) Physical examination revealed spasms in the cervical spine and in the
paraspinal muscles. (Id.) Magnetic resonance images (MRIs) taken December 7, 2004, showed
that for T11 through the 3rd sacral segment “vertebral body height and alignment” were
“well-maintained without significant spondylolisthesis or compression deformity.” (Tr. 249.)
The radiologist noted that the visualized posterior fossa and cranio-cervical junction were
unremarkable. (Tr. 248.) The T12-L1 level of the spinal chord showed mild degenerative
disease without stenosis. At L1-L3-4 levels no stenosis was found. (Id.) At the L4-5 level
there was minimal degenerative disease and minimal flattening of the dural sac but no significant
spinal stenosis. (Id.) At L5-S1 the radiologist’s impression was of cervical spondylosis,
minimal degenerative changes without spinal canal or foraminal stenosis and no exiting nerve root
impingement. (Id.) An MRI of the brain taken on the same date corroborated the findings of
cervical spondylosis most notably at the C 6-7 level, minimal degenerative changes without spinal
canal or foraminal stenosis and no exiting nerve root impingement. In addition, little or no
cervical spondylosis was evident at C2 through C6 and spinal and foraminal stenosis were absent.
(Tr. 250-252.) Despite the minimal degenerative/osteophyte disease noted, the radiologist found
no convincing evidence for spinal cord impingement. (Tr. 250.)
At a December 22, 2004 appointment with Dr. Iglesias, Claimant complained of “the
shakes” and migraine headaches. At that time Claimant was taking Soma, Zantac and Maxalt.
(Tr. 234.) At her February 3, 2005 visit with Dr. Iglesias, Claimant again complained of migraine
headache. She was prescribed Maxalt, Xanax and Trazodone. (Tr. 231.)
The materials before the Court do not include any medical records for the period from
February 4, 2005 through April, 18, 2010.
On April 19, 2010, Claimant was seen in the emergency room at St. Mary’s Health Center.
She complained of seven hours of severe epigastric pain radiating to her back. The medical
history set forth in these notes mentions back injuries from previous motor vehicle accidents and
provides that Claimant was “to start on pain management this week.” (Tr. 280.) There is no
reference to chronic back pain in these notes. Claimant’s medications were reported as
Lisinopril, Famotidine and Darvocet. (Tr. 273-306.)
On April 27, 2010, Claimant was seen by Jonathan Hayes, M.D. at St. Mary’s Health
Center Emergency Room. Her chief complaint was that she had slipped and fallen on the steps in
her home. She reported that she suffered chronic back pain and had an appointment “to see pain
management soon.” (Tr. 263.) Dr. Hayes noted pain originating from the soft tissues around the
spine and advised Claimant that the x ray of her coccyx did not definitively show a fracture,
although fracture was possible. (Tr. 262-66.) At the April 27, 2010 visit Claimant’s medications
were recorded as Percocet, Lisinopril, Darvocet and Vicodin. (Tr. 268)
On May 4, 2010, Claimant was seen by Dr. Bryan Steele, M.D. at Southern Illinois Health
Center. (Tr. 310.) The notes describe Claimant as “status post fall” with reported coccygeal
fracture, chronic lower back pain for which she took Darvocet and Celebrex, and well-controlled
hypertension. The notes again reflect that Claimant was to see “chronic pain management
On May 5, 2010, Claimant presented for pain management assistance at St. Anthony’s
Medical Center in Alton, Illinois complaining of chronic bilateral lower back, extremity, and
posterior cervical pain with a rating of 10/10. (Tr. 329.) Claimant also complained of headache
and neck pain resulting from multiple motor vehicle accidents dating from 2003. (Id.)
Physical examination showed that straight leg raising was absent; Revel’s signs were
questionable (positive on the left, absent on the right); muscle strength of 5/5 throughout the upper
and lower extremities and point tenderness over the posterior cervical soft tissues. In addition
Claimant described excruciating pain due to a recently diagnosed sacral fracture. (Tr. 331.) The
physician, Dr. John Zabrowski, M.D., assessed nonspecific lower back and extremity pain and
noted that due to absence of straight leg raise, the pain was not clearly linked to spinal stenotic or
disc protrusion. He posited possible sacroiliitis and pain related to recently diagnosed sacral
injury. (Id.) A five view x-ray of the cervical spine and a MRI of the lumbar spine were ordered.
In addition, Claimant was given a prescription for Tramadol and directed to take Tylenol. (Id.).
A May 18, 2010 x-ray of the cervical spine revealed no evidence of cervical spine disease.
(Tr. 327.) An MRI of the lumbar spine taken on the same date also revealed no evidence of
disease of the lumbar spine. (Tr. 328).
Dr. Steele, Claimant’s primary care physician, completed a physical RFC questionnaire on
or about December 8, 2010. 3 (Tr. 428-432.) At that time Dr. Steele, who had not seen Claimant
The record indicates that Dr. Steele signed the RFC form on December 8, 2010, but the form
also bears an earlier receipt stamp of November 23, 2010. At any rate, the record supports a
conclusion that the RFC was completed in late November or early December of 2010. (Tr.
for almost six months, indicated that he was unsure whether Claimant was a malingerer and noted
that emotional factors such as anxiety affected the perceived severity of Claimant’s symptoms and
functional limitations. (Tr. 428.) Dr. Steele also questioned whether Claimant’s physical and
emotional impairments were consistent with her reported symptoms and functional limitations.
(Tr. 429.) Finally, Dr. Steele opined that although Claimant’s back pain occasionally interfered
with her attention and concentration, Claimant was capable of performing low stress jobs. (Id.)
With respect to Claimant’s limitations, Dr. Steele stated that Claimant could walk less than
one block, could sit no more than 20 minutes without getting up to walk around and stand no more
than 30 minutes at a time. (Id.) He also stated that Claimant’s ability to stand and walk was
limited to less than a total of two hours in an eight hour workday, and that she could sit for no more
than two hours in an eight workday. (Id.) Dr. Steele asserted that Claimant would need a job
that permitted her periods to walk around during the work day and allowed her four unscheduled
breaks of less than five to ten minutes in an eight hour day. He also stated that Claimant needed to
be able to shift from sitting, standing, or walking at will, could only lift less than ten pounds. if
required to lift frequently, occasionally lift ten pounds, rarely lift 20 pounds and never lift 50
pounds. (Id.) Dr. Steele found that Claimant had no significant limitations with respect to
reaching, handling or fingering. (Id.) Dr. Steele also advised that Claimant should never climb
ladders, rarely crouch or squat, and only occasionally twist, stoop, or bend and climb stairs. (Id.)
Finally, Dr. Steele opined that if Claimant were employed she would miss about 3 days of work
per month due to her impairments. (Tr. 431)
On January 29, 2011, a licensed psychologist, Nancy Higgins, PhD., examined Claimant
and performed a consultative evaluation. (Tr. 337-343.) Dr. Higgins concluded that that
Claimant suffered from recurrent major depressive disorder, severe but without psychotic features;
an anxiety disorder not otherwise specified; a specific phobia, situational type, of bridges and a
learning disorder, not otherwise specified. Dr. Higgins also found that Claimant complained of
chronic neck and back pain, chronic fatigue, and exhibited hypertension, migraine headaches,
obesity, gastroesophageal reflux disease (GERD), and an overactive bladder.
Dr. Higgins assigned Claimant an axis V GAF score of 54, 4 indicating moderate
limitations and opined that she had an adequate ability to understand and remember the
instructions necessary to participate in the interview, but that at times she also had cognitive
difficulties in understanding those instructions and that it had been necessary to repeat the
instructions for one of tasks. (Tr. 342-343.) Dr. Higgins also noted that as a result of her
complaints of pain, Claimant had difficulty with concentration, and that Claimant would likely not
have the ability to persist at a task for any significant length of time. (Id.) Dr. Higgins concluded
that Claimant’s ability to sustain concentration and persistence in tasks was variable, as was her
ability to understand and remember instructions. Finally, she opined that Claimant’s ability to
interact socially and adapt to her environment was intact. (Id.)
During a February 23, 2011 routine visit Dr. Steele diagnosed Claimant with chronic back pain
and anxiety. (Tr. 360.)
A GAF score represents a clinician’s judgment of an individual’s overall ability to function in
social, school, or occupational settings, not including impairments due to physical or
environmental limitations. Diagnostic & Statistical Manual of Mental Disorders (4th ed.)
(DSM-IV) at 32. GAF scores of 31-40 indicate “[s]ome impairment” in reality testing or
communication or “major” impairment in social, occupational, or school functioning; scores of
41-50 reflect “serious” impairment in these functional areas; scores of 51-60 indicate “moderate”
impairment; scores of 61-70 indicate “mild” impairment.
Following Dr. Higgins’ consultative evaluation, a state agency medical consultant reviewed
the medical records. (Tr. 21, 344-54, 367-69.) Marsha Toll, PsyD. a licensed psychologist and a
non-examining State Disability Determination Service Psychologist, completed a mental RFC
questionnaire for Claimant on March 1, 2011. (Tr. 367-69.) Dr. Toll found Claimant moderately
limited in her ability to: understand or remember detailed instructions, carry out detailed instructions,
maintain attention and concentration for extended periods, perform activities within a schedule,
maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine
without special supervision, and travel to unfamiliar places or use public transportation. (Tr.
367-368.) Dr. Toll concluded that Claimant had the ability to understand simple one or two-step
instructions and to persist at simple tasks. (Tr. 369.)
On the same date, Dr. Toll also completed a psychiatric review technique form stating that
Claimant had affective and anxiety related disorders. (Tr. 344-355.) Specifically, Dr. Toll
found that Claimant’s activities of daily living and social functioning were mildly restricted and
that she had a moderate degree of difficulty with concentration, persistence, and pace and no
repeated episodes of decompensation of extended duration. (Tr. 352.) Dr. Toll also found
Claimant’s allegations of pain only partially credible. (Tr. 354.)
On March 9, 2011, Claimant received pain management services at St. Anthony’s Health
Center in Alton, Illinois. 5 (Tr. 423.) The Pain Clinic physician noted that Claimant suffered
from migraine headaches and sleep difficulties and was anxious and depressed, with “good
reason” to be so. (Id.) Claimant was referred to a neurologist for evaluation of migraine
headaches, anxiety, and depression. (Tr. 423-424.)
The medical record for the for the March 9, 2011 pain management visit states that Claimant
had been seen for the first time in the Pain Clinic on May 5, 2010, but no documentation of a May
5, 2010 visit appears in the record.
Dr. Steele saw Claimant at a follow-up visit on March 23, 2011, and listed her diagnoses as
hypertension, anxiety, hot flashes, and back pain. (Tr. 358.) At an April 25, 2011 visit with Dr.
Steele, Claimant reported chronic back pain and Dr. Steele identified the following conditions: chronic
pain, hypertension, anxiety and headache. (Id.) Claimant visited Dr. Steele again on September 12,
2011, and reported fatigue. (Tr. 357.) At that time Dr. Steele identified her ailments as: left lower
quadrant pain, fatigue, hypertension, and eye problems. (Id.).
Claimant was seen at the Barnes Jewish Hospital Emergency Department on October 7, 2011,
for complaints of chest pain. (Tr. 373.) On November 15, 2011, when Claimant next saw Dr. Steele,
she reported shortness of breath and was diagnosed with acute bronchitis. (Tr. 371.) On January 26,
2012, Claimant again reported to the Barnes Jewish Hospital Emergency Department complaining of
shortness of breath. The examining physician noted a productive cough, a clearly enlarged spleen,
headache, body aches, and fever. (Tr. 387, 392.)
Dr. Steele again saw Claimant on March 13, 2012, at which time she complained of diffuse
pain. (Tr. 370.)
Claimant was seen by Dr. Miranda Coole, M.D. at Grace Hill Health Care Center on May 17,
2012, and complained of pain underneath her arm. (Tr. 433.) Dr. Coole noted the following
conditions and symptoms: hypertension, hyperlipidemia, carbuncle and furuncle of other specified
sites, myalgia and myositis with fibromyalgia and chronic headaches. (Tr. 435.) In a letter dated
June 5, 2012, Dr. Coole wrote a letter stating without further explanation that Claimant’s medical
conditions made it inadvisable for her to serve jury duty. (Tr. 441.)
Evidentiary Hearing (Tr. 41-71)
A. Claimant’s Testimony
At the evidentiary hearing Claimant testified that she was 48 years old and 5’6” tall.
Claimant stated that she had learning difficulties that lead to her placement in special education
classes beginning in the sixth grade. She explained that she dropped out of high school in ninth
grade because she “didn’t like it,” but eventually obtained her GED. Claimant testified that she
could add and subtract but not multiply and divide and had difficulty making change, although she
could do so in a situation where the cash register indicated the amount of change to give.
Claimant testified that her last job bussing tables had been approximately three years ago,
and that she had quit because she couldn’t “carry the buckets with the dishes.” (Tr. 49.) She
further testified that over the last ten to fifteen years her only other work had been brief stints as a
cashier, and that as a cashier she had stocked shelves and lifted cases of soda. She stated that her
back and her headaches currently kept her from working. She explained that the headaches were
intermittent but lasted two to three days, were accompanied by nausea and affected her eyes.
Claimant also testified that she had daily back pain, was restricted to walking about in her home
and did no other walking. Claimant also stated that that she could sit for no more than ten to
fifteen minutes before she experienced pain.
With respect to medication, Claimant testified that she took Tramadol for pain, Flerxiril for
muscle spasm, Buspirone for anxiety and to help her sleep, and Advair for chronic obstructive
pulmonary disease. Claimant reported difficulty remembering things, a dislike of crowds and
highly changeable moods due to anxiety. She further stated that two to three times a month she
experienced anxiety attacks, averaging about 45 minutes in length.
Claimant also testified that she lived with her daughter, washed dishes, but did no other
housework, cooked very little and had no hobbies. She indicated that she has a pet dog that she
feeds and waters but that she was not able to take the animal outside.
B. Vocational Expert Testimony
At the hearing, the vocational expert (VE) testified that a person of Claimant’s age,
education and past work experience, capable of performing at the light exertional level; who can
occasionally climb ramps and stairs and never climb ladders or scaffolds, frequently balance and
occasionally stoop, kneel, crouch and crawl; and limited to performance of unskilled work could
perform the work of a cashier. The VE further testified that there were 1,685,000 cashier jobs in
the national economy and 37,600 such jobs in Missouri. When asked to posit the above
conditions and also to assume that, due to headaches, the person in question would be “off task”
for a much as 45 minutes per day, in addition to scheduled breaks, the VE opined that such a
person could not obtain a job as a cashier and would be unable to perform any other work available
in the regional or national economies.
The ALJ’s Decision
The ALJ first determined that Claimant had not engaged in substantial gainful activity
since November 23, 2010, the date of her SSI application. (Tr. 14.) The ALJ then found that
Claimant had the severe impairments of migraine headache and depression in accordance with the
requirements found at 20 CFR 416.920 (c), but that her allegations of impairment due to back and
neck pain should be rejected for lack of sufficient evidence that those impairments had lasted more
than the required 12 months. (Id.) In addition, the ALJ was not convinced that Claimant’s back
pain was a chronic condition dating from 2003 because she had not sought ongoing treatment from
February 4, 2005 through April, 18, 2010. Similarly, because Claimant had not sought ongoing
treatment, the ALJ questioned the credibility of her complaint that the pain she experienced rated a
“10” on a scale of 10. The ALJ also noted that the 2010 x-rays of Claimant’s cervical and lumbar
spine were normal and that the radiologist’s subjective impression was of no more than limited,
Citing the medical evidence, Claimant’s limited efforts to obtain medical treatment, the
inconsistencies in the record and Claimant’s poor work history, the ALJ concluded that her
allegations of disabling symptoms were not credible. The ALJ did not entirely reject but gave
little weight to the opinion of Dr. Steele, finding it “unpersuasive.”
discounted Dr. Steele’s opinion to the extent that he opined on matters reserved to the ALJ. In
addition, the ALJ noted that in completing the 2010 RFC questionnaire Dr. Steele referred only to
Claimant’s subjective complaints as evidence of her back pain and raised the possibility of
malingering because there were no objective medical findings to support Claimant’s allegations.
Relying in part on Social Security Ruling 96-4p, 6 the ALJ found there was no medically
determinable impairment associated with Claimant’s complaints of pain. He noted that the record
contained no diagnosis of and only “sporadic and conservative treatment” for her claims of pain.
The ALJ next determined that Claimant did not have an impairment or combination of
impairments meeting the severity of one of the listed impairments in 20 CFR part 404 Subpart P,
Appendix 1, 20 C.F.R. 416.920(d), 416.925 and 416.926. The ALJ found that the severity of
Claimant’s mental impairment did not meet or equal the criteria of listing 12.04. With respect to
“paragraph B” elements applicable to the mental impairment assessment the ALJ determined that
Social Security Ruling 96-4p states that :
[n]o symptoms or combination of symptoms can be the basis for a finding of
disability, no matter how genuine the individual’s complaints may appear to be
unless there are medical signs and laboratory findings demonstrating the existence
of a medically determinable physical or mental impairment.
Claimant had mild difficulty in the activities of daily living, mild difficulty in social functioning,
moderate difficulties with respect to concentration, persistence and pace but had not experienced
any extended episodes of decompensation. The ALJ concluded, however, that this combination
of “paragraph B” limitations did not satisfy the criteria of listing 12.04. The ALJ also determined
that the evidence failed to establish the “paragraph C” criteria. 7 The ALJ then noted that the mild
restrictions in Claimant’s activities of daily living reflected in her consultative exam and
functional report stemmed from her subjective complaints of pain which the ALJ did not find
The ALJ attributed significant weight to the examining consultative opinion of Dr. Higgins
and the opinion of Dr. Toll based on her review of the records, but gave no weight to the opinion of
Dr. Coole, an examining physician. (Tr. 20-21.)
The ALJ next determined that Claimant retained the residual functional capacity (“RFC”)
to perform a range of unskilled, 8 light work. 9 In reaching that conclusion, the ALJ took into
Generally, Paragraph C criteria relate to signs of a chronic affective disorder of at least 2
years’ duration including repeated episodes of decompensation of extended duration requiring
medication and psychosocial support.
“Unskilled” work as defined for purposes of SSI determinations “is work which needs little
or no judgment to do simple duties that can be learned on the job in a short period of time.” 20
C.F.R. pt. 416.968 (a). A person can usually learn to do an unskilled job in 30 days and such jobs
require “little specific vocational preparation and judgment.” Id. Finally, “[a] person does not
gain work skills by doing unskilled jobs.” Id.
“Light work” as defined for purposes of SSI determinations “involves lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and
might require a good deal of walking or standing, sitting most of the time, and some pushing and
pulling of arm or leg controls. 20 C.F.R. pt. 416.967 (b). In addition, the full range of light work
requires standing or walking, off and on, for a total of approximately six hours of an eight hour
work day, that sitting may occur intermittently during the remaining time; that the lifting
requirement for the majority of light jobs can be accomplished with occasional, rather than
frequent, stooping; and that many unskilled light jobs are performed primarily in one location,
with the ability to stand being more critical than the ability to walk. See SSR 83-10.
account, with respect to mental impairment, the function categories found in “paragraph B “of the
adult mental disorders listings. See Listing of Impairments, SSR 96-8p, listing 12.00 The ALJ
also considered Claimant’s ability to perform light work, as defined in 20 CFR 416.967 (b).
Specifically, the ALJ determined that Claimant could lift 20 pounds occasionally and ten pounds
frequently, could push and/or pull the aforementioned weights, could stand and/or walk about six
hours out of an eight hour workday with normal breaks, could sit for about six hours out of an eight
hour workday with normal breaks and was restricted to unskilled work. (Tr. 18.)
The ALJ concluded that Claimant had no past relevant work, but that she would be able to
make an adjustment to other jobs. Relying upon VE testimony, the ALJ concluded that Claimant
would be able to perform a representative occupation such as cashier, which existed in significant
numbers in the national economy. Consequently, the ALJ concluded that Claimant was not
disabled within the meaning of the Act. (Tr. 22-23.)
In a disability insurance benefits case, the burden is on the claimant to prove that he or she
has a disability. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001.) Under the Act, a
disability is defined 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
which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A claimant will be found to have a disability “only if
his physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. ''
423(d)(2)(A) and 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. Under these regulations, the ALJ first
determines whether the individual is engaged in “substantial gainful activity.” If she is, then she
is not eligible for disability benefits. 20 C.F.R. ' 404.1520(b). If she is not, the ALJ must
consider at Step Two whether the individual has a “severe impairment” that “significantly limits
[the claimant=s] physical or mental ability to do basic work activities.” 20 C.F.R. ' 404.1520(c).
If the claimant is not found to have a severe impairment, she is not eligible for disability benefits.
If, however, the claimant is found to have a severe impairment the ALJ proceeds to Step Three to
determine whether the impairment meets or is equal to one determined by the Commissioner to be
conclusively disabling. If the impairment is specifically listed or is equal to a listed impairment,
the claimant will be found disabled. 20 C.F.R. ' 404.1520(d). If the impairment is not listed or
is not the equivalent of a listed impairment, the ALJ moves on to Step Four to consider whether the
claimant is capable of doing past relevant work. If the claimant can still perform her past work,
she is not disabled. 20 C.F.R. ' 404.1520(e). If the claimant cannot perform her past work, the
ALJ proceeds to Step Five where he considers whether the claimant is capable of performing other
work in the national economy. At Step Five, the ALJ must consider vocational factors, such as a
claimant=s “age, education, and past work experience.” Only if a claimant is found incapable of
performing other work in the national economy will she be found disabled. 20 C.F.R. '
404.1520(f); see also Yuckert, 482 U.S. at 140-42 (explaining the five-step process).
Court review of an ALJ=s disability determination is narrow; the ALJ=s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
F.3d at 1217. Substantial evidence is “less than a preponderance, but enough that a reasonable
mind might accept it as adequate to support a decision.” Id. The district court therefore should
affirm the ALJ’s decision as long as there is substantial evidence in the record to support the ALJ’s
findings, regardless of whether substantial evidence exists to support a different conclusion.
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). A district court may not reverse that
decision merely because substantial evidence would also support an opposite conclusion,
Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001), or because it might have “come to a
different conclusion.” Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009). Thus, if “it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
agency=s findings, the [court] must affirm the agency=s decision.” Wheeler v. Apfel, 224 F.3d 891,
894-95 (8th Cir. 2000); see also Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (holding that
the ALJ=s denial of benefits is not to be reversed “so long as the ALJ=s decision falls within the
available zone of choice”) (internal quotations omitted).
Nevertheless, a district court’s review must be “more than an examination of the record for
the existence of substantial evidence in support of the Commissioner=s decision; [courts] also take
into account whatever in the record fairly detracts from that decision.” Beckley v. Apfel, 152 F.3d
1056, 1059 (8th Cir. 1998). In reviewing the Commissioner’s decision, a district court must
review the entire administrative record and consider:
The credibility findings made by the ALJ.
The claimant’s vocational factors.
The medical evidence from treating and consulting physicians.
The claimant's subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the claimant's impairments.
The testimony of vocational experts, when required, which is based
upon a proper hypothetical question which sets forth the claimant's
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting Cruse
v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
On appeal Claimant argues (1) that the ALJ’s RFC determination that she was capable of
unskilled light work is not supported by substantial evidence on the record as a whole, (2) that the
ALJ failed to give substantial weight to the opinions of treating physicians, (3) improperly relied
on the opinion of Dr. Higgins, the consultative examiner and thus failed to cite to “some” medical
evidence to support her RFC determination. In addition, Claimant argues that the hypothetical
question posed to the VE failed to capture the concrete consequences of her impairments. The
Commissioner asserts that Claimant’s arguments fail to take into account the ALJ’s credibility
determinations and their effect on his RFC determination.
In determining Claimant’s RFC, the ALJ considered the credibility of Claimant’s
subjective complaints and determined that they were not entirely credible. (Tr. 14-21). The
ALJ’s consideration of Claimant’s subjective complaints comports with the framework set forth in
Polaski v. Heckler, 739 F.2d at 1320, 1322 (8th Cir. 1984); its progeny; the regulations at 20
C.F.R. § 416.929 (2013) and Social Security Ruling (SSR) 96-7. In making her credibility
determination, the ALJ properly considered the objective medical evidence, Claimant’s failure to
seek ongoing, consistent medical treatment, her activities of daily living, her demeanor at the
hearing, medical opinion evidence, inconsistencies in the record, and Claimant’s work history.
See Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014); see also 20 C.F.R. § 416.920. Under
Eighth Circuit law, if the ALJ explicitly discredits a claimant’s testimony and gives good reasons
for doing so, the reviewing court should normally defer to the ALJ’s credibility determination.
See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010).
The ALJ properly determined that Claimant’s allegations of disabling back pain were not
supported by the objective medical evidence. (Tr. 14-15.). See 20 C.F.R. § 416.929(c)(1)-(2)
(stating that the ALJ should look at the medically documented “signs” and findings to determine
the intensity and persistence of the symptoms and how they actually affect the person. In
addition, the medical records show that Claimant exhibited normal gait, range of motion, strength,
and musculoskeletal function. (Tr. 278, 281, 312, 330, 373, 423, 434). Finally, despite
Claimant’s complaints of pain, she appeared in no acute distress, her pain could not be reproduced
and her treating physician raised the possibility of malingering. (Tr. 265, 281, 315, 392). (Tr.
15-16, 265, 281, 315, 334, 392, 423, 428); see also See McCoy v. Astrue, 648 F.3d 605, 614 (8th
Cir. 2011) (noting that the absence of signs indicating discomfort or acute distress will undercut
the credibility of allegations of pain) (citing Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir.
In addition, the ALJ correctly relied on the fact that despite her complaints, Claimant
sought and received only minimal and inconsistent treatment. (Tr. 14-15, 19, 21.); see Edwards
v. Barnhart, 314 F.3d 964, 967-68 (8th Cir. 2003) (stating that “[i]t was within the province of the
ALJ to discount [a claimant’s] claims of disabling pain in view of her failure to seek ameliorative
treatment”). For example, Claimant alleged a 2004 disability onset; but the medical records show
that she stopped treatment in March 2005 and received no treatment between March 2005 and
February 2010. (Tr. 14, 19, 142, 229, 314.) In February 2010, Claimant complained of back
pain, but sought no treatment for that pain from May 2010, (Tr. 15, 314, 329-31), until February
2011. (Tr. 360.) Thereafter, she sought no further treatment during 2011. (Tr. 15.) Similarly,
although she alleged disabling mental impairments, Claimant never received treatment from a
mental health specialist only intermittently reported symptoms of anxiety or depression to her
treating physician, and had not been prescribed medication for anxiety or depression on a regular
basis. (Tr. 21, 54, 181, 340); see also Page v. Astrue, 484 F.3d 1040, 1043-44 (8th Cir. 2007)
(affirming the ALJ’s determination that mental issues were not severe where the claimant sought
only intermittent, limited treatment).
The ALJ properly identified other inconsistencies in the record that call Claimant’s
credibility into question. (Tr. 19-21.) See Whitman v. Colvin, 762 F.3d 70 1, 707-08 (8th Cir.
2014) (holding that subjective complaints were properly where the evidence as a whole is
inconsistent with the claimant’s testimony). For example, Claimant alleged visual problems, but
did not seek treatment for a these symptoms. (Tr. 19, 329, 357.) In addition, she testified that
she had intermittent migraine headaches that sometimes lasted for several days, (Tr. 51, 60), but
the record does not indicate that she sought treatment for the headaches. (Tr. 19-21.) Moreover,
Claimant asserted that she had difficulty breathing, but continued to smoke. (Tr. 19, 371, 435.)
In accordance with SSR 96-7p, the ALJ also properly considered Claimant’s demeanor at
the administrative hearing in assessing her credibility. (Tr. 18, 20.); see SSR 96-7p (stating that
the ALJ is permitted to “consider his or her own recorded observations of the individual as part of
the overall evaluation of the credibility of the individual’s statements”). Noting that Claimant’s
appearance and demeanor were unpersuasive, the ALJ properly relied on this observation and
found her allegations inconsistent with the record as a whole. (Tr. 12-13, 21, 23.)
Finally, the ALJ also properly considered Claimant’s work history. (Tr. 18.) The record
indicates that Claimant’s income never exceeded $7,000 per year and that she continued to work
after her first alleged onset date in 2004 through 2010 without any significant change. (Tr. 18, 19,
156, 168); see Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (including a poor work history
among the factors that detract from an individual’s credibility).
B. “Some Medical Evidence”
The ALJ must determine a claimant’s RFC based on all relevant, credible evidence in the
record, including medical records, the observations of treating and consultative physicians and
others, and the claimant’s own description of his symptoms and limitations. See McCoy, 648
F.3d at 614 (citing Flynn v. Astrue, 513 F.3d 788, 792 (8th Cir. 2008)); see also 20 C.F.R. §
404.1545(a). In every instance, the RFC must be supported by ‘“at least some medical
evidence,”’ Myers v. Colvin, 721 F.3d 521, 527 (quoting Wildman v. Astrue, 596 F.3d 959, 969
(8th Cir. 2010)), which includes medical records and the observations and opinions of treating
sources. See 20 C.F.R. §§ 416.912(b)(1), 416.913(b), 416.928(b)-(c) (2013).
Here Claimant argues that here the ALJ’s RFC finding that she could perform a range of
unskilled, light work was not, as required, supported by “some medical evidence.” Wildman, 596
F.3d at 969. Specifically, Claimant asserts that the ALJ having rejected the opinions of opinion of
her treating physicians, improperly relied on the opinion of Dr. Higgins, the consultative examiner,
as some medical evidence to support her RFC. Claimant contends that this reliance was
misplaced because Higgins was the only examining medical source to contradict the treating
physicians. See, e.g., Hatcher v. Barnhart, 368 F.3d 1045 (8th Cir. 2004) (stating that the opinion
of a consultative physician does not generally satisfy the substantial evidence requirement,
especially where the consultant is the only examining source to disagree with the treating
physicians); Cox v. Barnhart, 345 F.3d 606, 610 (8th Cir. 2003) (same); Jenkins v. Apfel, 196 F.3d
922, 925 (8th Cir. 1999) (same).
For the following reasons the Court concludes that this argument lacks merit and finds that
the ALJ’s RFC determination is supported by some medical evidence and by substantial evidence
on the record as a whole. First, in this case unlike Cox, the ALJ did not “completely disregard[
]” the opinions of the treating physicians. See Cox, 345 F. 3d at 609-610. Although the ALJ
discounted portions of Dr. Steele’s opinion, she gave it some, albeit “very little weight.” (Tr. 15.)
In addition, here unlike in Cox, the “larger medical record” supports the ALJ’s determination and
fails to corroborate Dr. Steele’s opinion. See Brown v. Astrue, 611 F 3d 941, 952-53 (8th Cir.
2010) (holding that Cox was distinguishable from the case at issue because the “larger medical
record” did not “support [the treating physician’s] conclusory opinion”). This is not a case where
only the consultative examiner’s opinion is the only thing in the record supporting a determination
that Claimant’s limitations do not preclude her from performing light, unskilled work. The larger
medical record here supports that determination. (Tr. 19.) Moreover, in this case the
consultative examiner was a specialist in psychology, the field pertinent to the identified mental
impairment, but the treating physicians were not. See Thomas v. Barnhart, 130 Fed. App’x. 62,
64 (8th Cir. 2005) (unpublished per curiam) (observing that “[g]reater weight is generally given to
the opinion of a specialist about medical issues in the area of specialty, than to the opinion of a
non-specialist”) (citing 20 CFR §§ 404.1527(d)(5); 416.927(d)(5)); cf. Brown. Astrue, 611 F.3d at
952 (affording the opinion of a treating specialist greater weight due to the pertinence of the
specialty to the impairment at issue).
C. The Weight Afforded the Opinions of Consultative, Examining and Treating
Claimant next asserts that the ALJ improperly discounted the medical opinions of Dr.
Steele and Dr. Coole, Claimant’s treating physicians, and failed to indicate what weight he
assigned to their opinions.
The opinions of treating physicians while often afforded significant weight do not
automatically control. Bernard v. Colvin, No. 13-3357, 2014 WL 7238033, at 4 (8th Cir. Dec. 22,
2014) (citing Turpin, 750 F.3d at 993). Instead “[a] treating physician’s opinion is given
controlling weight if it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence.” Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (internal quotation marks and citation omitted). But
where there is “conflicting evidence on the record, the ALJ’s determination that the physicians’
opinions were not supported by objective medical evidence does not lie outside the available zone
of choice.” See Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (citation omitted).
In evaluating medical opinion evidence, an ALJ properly considers the examining
relationship, the treatment relationship, the supportability and consistency of the medical opinion,
the specialization of the medical source, and other factors brought to the ALJ’s attention that bear
upon the weight to be accorded to the medical opinion evidence. See 20 CFR §§
404.1527(d)(1)-(6), 416.927(d)(1)-(6). For example, a physician’s statement that is “not
supported by diagnoses based on objective evidence” will not support a finding of disability.
Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003). If the medical opinion is “inconsistent
with or contrary to the medical evidence as a whole, the ALJ can accord it less weight.” Id20
C.F.R. § 404.1527(d)(2). In addition, “[a]n 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.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (internal
quotation marks and citation omitted). Finally, the ALJ may give less weight to a conclusory or
inconsistent opinion espoused by a treating physician. See Samons v. Astrue, 497 F.3d 813, 818
(8th Cir. 2007; Ward v. Heckler, 786 F.2d 844, 846 (8th Cir. 1986) (per curiam) (noting that
“[e]ven statements made by a claimant’s treating physician regarding the existence of a disability
have been held to be properly discounted in favor of the contrary medical opinion of a consulting
physician where the treating physician’s statements were conclusory in nature”).
As a preliminary matter, there is no question that the ALJ explicitly stated that she gave
“little weight” to Dr. Steele’s opinion. (Tr. 15.)
Dr. Steele provided an opinion that Claimant could lift ten pounds occasionally and less
than ten pounds frequently, sit for less than two hours in an eight hour workday, and stand or walk
for less than two hours in an eight hour workday. (Tr. 335, 430.) The opinion was provided on a
check box form, failed to cite to objective evidence and included little or no explanation for the
conclusions drawn. (Tr. 334-36, 428-43). These insufficiencies alone provide a valid basis for
the ALJ’s decision to partially discount Dr. Steele’s opinion. See Anderson v. Astrue, 696 F.3d
790, 794 (8th Cir. 2012) (quoting Wildman, 596 F.3d at 964) (stating that the Eighth Circuit “ha[s]
recognized that a conclusory checkbox form has little evidentiary value when it ‘cites no medical
evidence, and provides little to no elaboration.’”). In addition, Dr. Steele’s opinion is neither
supported by nor consistent with his treatment notes, which reflect an absence of significant
objective abnormalities. (Tr. 259-61, 310-13, 357, 370-71) This inconsistency supports the
ALJ’s determination that Dr. Steele’s opinion was “extremely out of proportion” to the objective
evidence. (Tr. 15.) See Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004) (holding that an
ALJ is warranted in discrediting an opinion that is inconsistent with, or contradicted by, other
evidence in the record).
Moreover, in support of his opinion Dr. Steele cites almost exclusively to Claimant’s
subjective complaints of pain which the ALJ properly determined lack credibility. (Tr. 14-21,
334, 428.) Non-credible subjective complaints do not provide the objective evidence necessary to
justify affording controlling or great weight to a doctor’s opinion. See McCoy, 648 F.3d at 617
(finding that a physician’s opinion was “rendered less credible,” where it appeared to be based, at
least in part, on the claimant’s self-reported symptoms which the ALJ had found less than
credible). In addition, Dr. Steele raised the possibility that Claimant was a malingerer but then
heavily relied upon her subjective reports of pain and limitation. This contradiction also
significantly detracts from the reliability of his opinion. See Bernard, 2014 WL 7238033, at *4;
Sultan, 368 F.3d at 857. Finally, Dr. Steele’s opinion invaded the province of the Commissioner
by offering an opinion on the ultimate issue of whether Claimant was disabled. See, e.g., Brown,
611 F.3d at 952 (stating that treating physicians’ opinions should not be credited when they simply
state that a claimant cannot be gainfully employed); Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005) (stating that “[a] medical source opinion that an applicant is ‘disabled’ or ‘unable to work’ ...
involves an issue reserved for the Commissioner and therefore is not the type of ‘medical opinion’
to which the Commissioner gives controlling weight”) (citing Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2010)). For these reasons the ALJ’s decision to give Dr. Steele’s opinion little
weight is supported by substantial evidence on the record as a whole.
Claimant’s contention that the ALJ should have afforded more weight to the opinion of Dr.
Coole, another treating physician, also lacks merit. (Tr. 21, 441.) After examining Claimant
only once, Dr. Coole opined that Claimant’s impairments made it impossible for her to serve as a
juror, but did not specify the nature of the impairments or why they precluded jury service. (Tr.
441.) The ALJ did not err in giving little weight to Dr. Coole’s opinion because Dr. Coole’s
statements were conclusory and premised upon a one-time medical evaluation. See Brown, 611
F.3d at 952; Ward, 786 F.2d at 846 (per curiam) (noting that “[e]ven statements made by a
claimant’s treating physician regarding the existence of a disability have been held to be properly
discounted in favor of the contrary medical opinion of a consulting physician where the treating
physician’s statements were conclusory in nature.”).
D. The Full Range of Unskilled Work
Claimant also argues that the ALJ erred in finding that Claimant could perform the full
range of unskilled work. Specifically, she contends that Dr. Toll’s opinion that she could follow
no more than one or two-step instructions, (Tr. 369), does not support a determination that she
could perform unskilled work because unskilled work includes the performance of tasks requiring
more than two step instructions. The Court does not agree.
Claimant correctly asserts that “unskilled work” is not restricted to tasks involving only
one or two - step instructions. See SSR 85-15, 96-9p (specifying only that “unskilled work”
relates to tasks involving “simple” instructions); Dictionary of Occupational Titles (DOT),
reasoning code 1 (same). But her argument ignores the fact that in formulating her RFC the ALJ
attributed weight to and relied upon the opinion of Dr. Higgins, an opinion which did not restrict
Claimant to the performance of one or two-step instructions. To the extent that Dr. Toll’s opinion
corroborated Dr. Higgins, the ALJ found it persuasive, but the ALJ did not adopt the one or
two-step restriction stated by Dr. Toll. (Tr. ???)
D. Hypothetical Question posed to the VE
At Step 4 the ALJ determined that Claimant had no past relevant work. Then at Step 5,
having determined that Claimant would be able to make an adjustment to other jobs in the national
economy, the ALJ relied on the VE’s response to her hypothetical question and concluded that
Claimant would be able to perform work as a cashier. The ALJ further found on the basis of the
VE testimony that “cashier” is a job available in significant numbers in the national economy.
Therefore, the ALJ properly concluded that Claimant was capable of other work and, thus, not
disabled. (Tr. 18, 21-23.)
Claimant asserts, however, that the hypothetical question posed to the VE did not capture
the concrete consequences of her impairment. (Tr. 64-65.) In this case, the ALJ’s hypothetical
question assumed an individual with Claimant’s vocational factors and possessing those
limitations that the ALJ found credible.10
The VE opined that such an individual could
perform work as a cashier. (Tr. 18, 64-65.) In addition, the VE testified that an individual with
Claimant’s credible limitations could perform work existing in significant number in the national
economy. (Tr. 64-65).
The VE was asked to assume a person of the Claimant’s age, education and past work
experience, capable of performing only unskilled work at the light exertional level. The
hypothetical presumed an individual further limited in that she may only occasionally climb ramps
and stairs, never climb ladders or scaffolds, frequently balance, and occasionally stoop, kneel,
crouch and crawl. (Tr. 64-65.)
Testimony from a vocational expert based on a properly-phrased hypothetical constitutes
substantial evidence. Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996). The hypothetical
question must set forth with reasonable precision a claimant’s impairments, but it need not include
those impairments and limitations rejected by the ALJ because they lack credibility. See McCoy,
648 F.3d at 617. The ALJ was not required to include in her hypothetical all limitations alleged
by Claimant and she properly included only the limitations she found credible. See Gragg v.
Astrue, 615 F.3d 932, 940 (8th Cir. 2010).
The ALJ’s determination is supported by substantial evidence on the record and she
properly considered the evidence with respect to credibility, the validity and weight to be afforded
various medical opinions, the effect of Claimant’s mental impairment on her RFC. The ALJ also
propounded a hypothetical that accurately reflected the evidence of record and Claimant’s credible
limitations. Inasmuch as the ALJ’s RFC finding was within the “zone of choice” and supported
by substantial evidence it will be upheld. See Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir.
IT IS HEREBY ORDERED that the final decision of the Commissioner denying SSI
payments is AFFIRMED. (Doc. No. 15).
/s/ Terry I. Adelman
TERRY I. ADELMAN
UNITED STATES MAGISTRATE JUDGE
Dated this 2nd day of February, 2015.
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