Zanzottera v. Colvin
Filing
27
MEMORANDUM AND ORDER re: 18 SOCIAL SECURITY BRIEF filed by Plaintiff Louis C. Zanzottera ;IT IS HEREBY ORDERED, ADJUDGED and DECREED that the final decision of the Commissioner denying social security benefits be AFFIRMED. Judgment shall be entered accordingly.. Signed by Magistrate Judge Terry I. Adelman on 1/28/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LOUIS C. ZANZOTTERA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
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No. 4:13CV1963 TIA
MEMORANDUM AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This cause is on appeal from an adverse ruling of the Social Security Administration. The
suit involves Applications for Disability Insurance Benefits under Title II of the Social Security
Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief
in Support of his Complaint, and the Commissioner has filed a Brief in Support of her Answer,
and Claimant filed a Reply thereto. The parties consented to the jurisdiction of the undersigned
pursuant to 28 U.S.C. § 636(c).
I.
Procedural History
Claimant Louis Carlo Zanzottera filed Applications for Supplemental Security Income
payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (Tr. 22023)1 and Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr.
223-32). Claimant states that his disability began on February 21, 2007, as a result of problems
with his hands, legs, and knees, heart problems, arthritis, and missing left index finger. (Tr. 118).
1
"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(Docket No. 15/filed December 20, 2013).
On initial consideration, the Social Security Administration denied Claimant's claims for benefits.
(Tr. 122-26). Claimant requested a hearing before an Administrative Law Judge (“ALJ”). (Tr.
127-31). On September 15, 2010, a hearing was held before the ALJ who issued an unfavorable
decision on October 21, 2009. (Tr. 32-51, 95-104). On November 12, 2009, Claimant filed a
Request for Review of Hearing Decision, and the Appeals Council granted the request for review,
vacated the hearing decision, and remanded the case to the ALJ to address certain matters on
September 26, 2012. (Tr. 117-20). In relevant part, the Appeals Council directed the ALJ to
resolve the following issues prior to the period to October 26, 2010: (1) to evaluate his obesity;
(2) to assess limitations related to the partial amputation of his left index finger; (3) to consider
whether he can return to his past relevant work as a cook and a coin machine collector; (4) to
obtain evidence from an orthopedic medical expert; and (5) to obtain evidence from a vocational
expert. (Tr. 118-19). The Appeals Council also affirmed the finding by the state agency that
Claimant was disabled beginning on October 26, 2010. (Tr. 20).
On February 27, 2013, a subsequent hearing was held before the ALJ. (Tr. 52-78).
Claimant testified and was represented by counsel. (Id.). Medical Expert Dr. Anne E. Winkler
testified at the hearing. (Tr. 55-58, 170-76). Vocational Expert Gerald D. Belchick, Ph.D., also
testified at the hearing. (Tr. 67-74, 177-78). Thereafter, on April 16, 2013, the ALJ issued a
decision denying Claimant’s claims for benefits finding he was not disabled during the adjudicative
period before him, February 21, 2007 through October 25, 2010. (Tr. 16-26). After considering
the representative brief, the Appeals Council found no basis for changing the ALJ’s decision on
September 3, 2013. (Tr. 1-6, 8-15, 328-32). The ALJ's determination thus stands as the final
decision of the Commissioner. 42 U.S.C. § 405(g).
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II.
Evidence Before the ALJ
A. Hearing on September 15, 2010
1. Claimant's Testimony
At the hearing on November 7, 2012, Claimant testified in response to questions posed
by the ALJ and counsel. (Tr. 34-51). At the time of the hearing, Claimant was sixty years of
age. (Tr. 34). He completed the eleventh grade and attended the police academy. (Tr. 35). He
is right-handed and stands at 5'7" and weighs 233 pounds. (Tr. 37).
Claimant lost part of his index finger while helping a friend on a weekend job. (Tr. 38).
He testified that he cannot control his left hand and has problems gripping. (Tr. 41). He had
bypass surgery in 1996. (Tr. 38).
B. Hearing on February 27, 2013
1. Claimant's Testimony
At the hearing on February 27, 2013, Claimant testified in response to questions posed
by the ALJ and counsel. (Tr. 61-67). From 1995-96, he worked as a meter collector/
maintenance man and installed meters with a jack hammer. (Tr. 62). His duties included
collecting money and performing maintenance on parking meters. (Tr. 64). Claimant testified
that he was fired because he could not perform his duties. He had problems fumbling with the
keys to unlock the meters to collect the money. (Tr. 66). He worked from 1999-2004 at Grone
Cafeteria serving customers on the line and sometimes working as a cook preparing food and
carving meat. (Tr. 62, 74). He left that job when the cafeteria closed. (Tr. 76). Next, he worked
at Sinclair, a gas station, three days a week but his days were reduced because he could not
perform his duties such as lifting and unable to grasp. (Tr. 63).
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2. Testimony of Vocational Expert
Vocational Expert Dr. Gerald Belchick testified in response to the ALJ’s questions. (Tr.
67-74). Dr. Belchick described Claimant’s past work as including a maintenance job, an unskilled
job between medium to heavy exertional level; and a line server in a cafeteria, a semi-skilled job;
and a cook. (Tr. 65).
The ALJ asked Dr. Belchick to assume
a hypothetical claimant could lift or carry 50 pounds occasionally, 25 pounds
frequently. Stand or walk for six hours out of eight, sit for six, could occasionally
climb stairs, and ramps. Never ropes, ladders, or scaffolds. Occasionally crawl,
and avoid concentrated exposure to unprotected heights. With that particular
residual functional capacity, keep all three jobs?
(Tr. 71). Dr. Belchick responded yes. (Tr. 71).
3. Testimony of Medical Expert Dr. Anne E. Winkler
The ALJ explained how they were going to review two different time periods from
February 21, 2007 until October 25, 2010. (Tr. 55). Dr. Winkler noted during the relevant time
period, Claimant had mild cervical degenerative disc disease, hypertension, obesity, a missing fuse
joint on a third finger and a missing second finger on his left hand, and mild osteoarthritis in his
left PNC joint. (Tr. 55). Dr. Winkler noted how the x-rays of his knees show some calcification
in the muscles without significant impairment and later on in 2011, testing showed degenerative
disc disease in his lumbar spine. (Tr. 56).
Dr. Winkler opined Claimant would be able to lift and carry 50 pounds occasionally; 25
pounds frequently; and walk at least six hours in an eight hour work day with no limits of sitting.
(Tr. 56). Further, Dr. Winkler found he should never climb ropes or scaffolds; and he could
frequently balance, kneel, or crouch and occasionally crawl. Based on her review of the record
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and the varying assessments in the record and his last assessment indicating normal grip of both
hands, Dr. Winkler did not find Claimant to have any manipulative limitations and that the
amputation on his left hand would not affect his ability to lift weights. With respect to
environmental limitations, she found Claimant should avoid unprotected heights. (Tr. 56). Dr.
Winkler noted how a lifting limitation of no more than 10 pounds was recommended after his
hernia surgery in May 2011, but she explained how usually six weeks post op there are no
restrictions unless a recurring hernia, he would be limited in lifting 25 pounds frequently and
occasionally. (Tr. 57).
Counsel noted how the consultative examiner, Dr. Loretta Mendoza, found his grasp to be
poor in his left hand in 2009. (Tr. 58). The ALJ opined that is why he indicated there were
inconsistent records citing how in 2005 and 2011 records reflect how he has a normal grasp. (Tr.
58).
4. Forms Completed by Claimant
In the Work Activity Report - Employee, Claimant reported working at Hampton
Expressmart twenty-four hours a week from June 2006 through May 2008, and he stopped
working because of his medical condition. (Tr. 257-58). He did not require any special work
conditions. (Tr. 259).
In the Disability Report - Field Office, the interviewer noted Claimant to be a poor
historian. (Tr. 265-68).
In the Function Report - Adult, he listed taking a shower, trying to help with things
around the apartment, and watching television as his daily activities. (Tr. 269-70). He does the
laundry twice a week and puts the dishes in the dishwasher. (Tr. 271). He can drive a car and
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goes shopping once a week. (Tr. 272). Claimant reported because he does not have insurance,
he is not able to see doctors and receive medications. (Tr. 276).
In the Disability Report - Adult, Claimant reported he cannot hold anything heavy or grip
with his left hand, and these conditions first interfered with his ability to work in February 2007.
(Tr. 281). He worked after the alleged onset date of disability as needed at Hampton
Expressmart, but he employer terminated him because he could not lift a case of beer. (Tr. 281).
Claimant listed cook, meter collector, concrete finisher, and maintenance man as his past
jobs in the Work History Report. (Tr. 288-99). He last worked in February 2007 as a
maintenance man cleaning the printing press, sweeping the floors, and emptying the trash. (Tr.
293).
In the Disability Report - Appeal, Claimant reported having difficulty going up steps and
even carrying a case of soda. (Tr. 309-14).
III.
Medical Records and Other Records
In the August 1997 treatment notes from Deaconess Health System, the doctor
performing the physical examination noted Claimant to be obese, and there are other references to
him being obese. (Tr. 339, 343, 345, 351). His weight is listed as an estimated 250 pounds. (Tr.
406).
Claimant lost one of his fingers at work in 1996. (Tr. 339).
Claimant presented in the emergency room at Barnes-Jewish Hospital on May 15, 2004,
for treatment after being in a motor vehicle accident (Tr. 427-42). He reported he had been
drinking. (Tr. 442). The doctor observed Claimant seemed to be slightly intoxicated. (Tr. 443).
In response to the request for medical records, Dr. Human Farah noted that the patient has
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not been seen since 2005. (Tr. 315).
On December 12, 2005, Dr. Sawwath Bhattacharya completed an internal medicine
examination on referral by Disability Determinations. (Tr. 444). Claimant reported last working
as a meat carver and cook in a cafeteria, but the cafeteria closed down. (Tr. 444). He reported
being able to walk five blocks, to stand and sit okay, and lift 25 pounds. (Tr. 445). He does all of
his housework and can drive. (Tr. 445). He weighed 225 pounds. (Tr. 446). Examination
showed no paravertebral muscle spasm or tenderness. Dr. Bhattacharya observed his gait to be
within normal limits and no difficulty getting up and down the examination table, and noted he is
able to walk on his heels and his toes. (Tr. 446). Dr. Bhattacharya noted his left index finger was
amputated from the proximal interphalangeal joint and observed somewhat decreased movement
in the metatarsophalangeal joint and his hand grip slightly reduced. (Tr. 447). In the Range of
Motion Values, Dr. Bhattacharya rated his grip strength as a four out five in his left hand and a
four plus out of five in his right hand. (Tr. 449). Dr. Bhattacharya found his handgrips to be
slightly reduced but functional and listed overweight as a clinical impression. (Tr. 447).
On December 22, 2009, Dr. Loreeta Mendoza completed an internal medicine
examination. (Tr. 479). Claimant’s chief complaints were problems with his hands, legs and
knees, mostly arthritis and heart problems. Claimant reported how he has not seen a doctor since
2006. Dr. Mendoza found he does not have grip strength in his left hand. (Tr. 479). In the
Range of Motion Values, Dr. Mendoza rated his grip strength as a three out of five in his left hand
and a five out of five on his right hand. (Tr. 484). Dr. Mendoza noted how “[h]e did not
complain at all as far as the heart is concerned.” (Tr. 480). He cleans the apartment, cooks and
goes to the grocery store. (Tr. 480). Examination of his back showed a full range of motion with
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no difficulty. (Tr. 481). He is right-handed. Dr. Mendoza noted he is missing the index finger on
his left hand. She observed his gait to be essentially normal and able to toe walk and heel walk.
(Tr. 481). In the Clinical Impression, Dr. Mendoza noted he has less grip in the left hand, and he
has osteoarthritis in both knees. (Tr. 482).
On February 23, 2010, Claimant sought treatment so he could get back on medications
since he had been off medications for five years, and reported that he had no complaints. (Tr.
495, 547). He reported having a triple bypass in 1997 and only taking aspirin daily even though
he was supposed to be on a statin and a beta blocker. In the History of Present Illness, Dr.
Robert Baird noted: Patient’s words: “pt is here for disability.” Dr. Baird assessed
hyperlipidemia and hypertension, benign and noted to follow-up in two months as needed. (Tr.
495, 547). In the Nurse’s Exit Note, noted how disability forms were given to JCM. (Tr. 496,
548).
On April 20, 2010, Dr. Baird treated Claimant in a routine follow-up, and he requested a
refill of his nasal spray. (Tr. 493, 545). The cardiovascular examination showed normal heart
sounds, regular rate, and rhythm with no murmurs. Dr. Baird assessed osteoarthritis and
requested follow-up in six months. (Tr. 493, 545). In follow-up treatment on November 29, he
returned for a medication refill and lower back pain for one week. (Tr. 541). He reported feeling
well with minor complaints including running out of his medications, back hurting, decreased
energy, and sleeping poorly. (Tr. 541). Dr. Baird prescribed Cyclobenzaprine. (Tr. 542). Dr.
Baird encouraged him to exercise for at least thirty minutes each day five or more days a week.
(Tr. 543). Suggested exercise included brisk walking, dancing, biking, or any other type of
physical activity that elevates the heart rate. (Tr. 543).
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On July 6, 2011, Dr. Inna Park completed an internal medicine examination on referral by
disability determinations. (Tr. 583). He reported back pain starting ten years earlier but never
having any injections, physical therapy, or chiropractic care for this pain. (Tr. 584). Two years
earlier he would walk five miles a day but he now has difficulty walking two blocks. (Tr. 584).
In 1996, he sustained trauma to his left index finger resulting in the amputation. Claimant
reported living with his ex wife and being right-hand dominant. (Tr. 584). Examination showed
some tenderness at the mid lumbar spine and into the right sacroiliac region and the right femoral
head. (Tr. 586). Examination showed some decreased range of motion of his knees. Dr. Park
observed Claimant get on and off the examination table without difficulty. Dr. Park observed he
walks on his toes and heels without difficulty and squats about fifty percent complaining of pain.
(Tr. 586). Dr. Park found that he would require alternating between sitting, standing, and
walking to maintain comfort in his lower back, and any prolonged walking would be difficult.
(Tr. 587). Dr. Parks also found any heavy lifting would be difficult, and repetitive motions of his
hands may also be difficult. (Tr. 587). The x-ray showed degenerative disc disease of the lumbar
spine. (Tr. 588). In the Range of Motion Values, Dr. Park found Claimant to have grip strength
rated at five and ability to make a fist in both hands; and his fingers can be opposed and his hands
fully extended. (Tr.590).
IV.
The ALJ's Decision
The ALJ found that Claimant meets the insured status requirements of the Social Security
Act through December 31, 2011. (Tr. 22). Claimant has not engaged in substantial gainful
activity since February 21, 2007, the amended alleged onset date. The ALJ found that the
medical evidence establishes that Claimant has the severe impairments of mild degenerative disc
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disease of the cervical spine and a partial amputation of the left index finger, but no impairment or
combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4. The ALJ found that Claimant has the residual functional capacity to perform
medium work lifting twenty-five pounds frequently and fifty pounds occasionally. He can
occasionally climb ramps and stairs, but he should never climb ropes, ladders, and scaffolds. The
ALJ further found he can occasionally crawl, but he should avoid concentrated exposure to
unprotected heights. (Tr. 22). Claimant is able to perform his past relevant work as a meter
collector, laborer, and a cafeteria line worker inasmuch as these jobs do not require the
performance of work-related activities precluded by his RFC based on the testimony of the
vocational expert. (Tr. 25). The ALJ concluded that Claimant has not been under a disability
from February 21, 2007, through October 25, 2010. (Tr. 26).
V.
Discussion
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
Social Security 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). Additionally, the
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
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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. First, the ALJ must determine 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 step two which
asks 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 the claimant is
found to have a severe impairment the ALJ proceeds to step three in which he must 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 which asks whether the
claimant is capable of doing past relevant work. If the claimant can still perform past work, she is
not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ
proceeds to step five in which the ALJ determines whether the claimant is capable of performing
other work in the national economy. In step five, the ALJ must consider the 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
Bowen, 482 U.S. at 140-42 (explaining 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
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F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
1.
The credibility findings made by the ALJ.
2.
The claimant's vocational factors.
3.
The medical evidence from treating and consulting physicians.
4.
The claimant's subjective complaints relating to
exertional and non-exertional activities and impairments.
5.
Any corroboration by third parties of the
claimant's impairments.
6.
The testimony of vocational experts when required which
is based upon a proper hypothetical question which sets forth the claimant's
impairment.
Stewart v. Secretary 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)).
The ALJ’s decision whether a person is disabled under the standards set forth above is
conclusive upon this Court “if it is supported by substantial evidence on the record as a whole.”
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Wiese , 552 F.3d at 730 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008).
“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the conclusion.” Wiese, 552 F.3d at 730 (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). When reviewing the record to determine whether
the Commissioner’s decision is supported by substantial evidence, however, the Court must
consider evidence that supports the decision and evidence that fairly detracts from that decision.
Id. The 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 it
might have “come to a different conclusion.” Wiese, 552 F.3d at 730. 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 McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010)
(if substantial evidence supports the Commissioner’s decision, the Court “may not reverse, even if
inconsistent conclusions may be drawn from the evidence, and [the Court] may have reached a
different outcome.”); Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (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).
Claimant contends that the ALJ's decision is not supported by substantial evidence on the
record as a whole, because the ALJ failed to properly assess his credibility and formulate his RFC.
Claimant also contends that the ALJ failed to address his obesity. Finally, Claimant argues that
the ALJ failed to explicitly weigh the medical source opinions.
A.
Residual Functional Capacity and Credibility Determination
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Claimant contends that the ALJ erred in formulating the RFC inasmuch as the RFC is not
supported by relevant evidence from the adjudicative period and his credibility assessment is
legally unsound.
A claimant's RFC is what he can do despite his limitations. Dunahoo v. Apfel, 241 F.3d
1033, 1039 (8th Cir. 2001). The claimant has the burden to establish his RFC. Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The ALJ determines a claimant's RFC based on all
relevant, credible evidence in the record, including medical records, the observations of treating
physicians and others, and the claimant's own description of his symptoms and limitations. Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005); Eichelberger, 390 F.3d at 591; 20 C.F.R. §
404.1545(a). The ALJ is "required to consider at least some supporting evidence from a [medical
professional]" and should therefore obtain medical evidence that addresses the claimant's ability to
function in the workplace. Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (internal
quotation marks and citation omitted). An ALJ's RFC assessment which is not properly informed
and supported by some medical evidence in the record cannot stand. Id.
The ALJ opined that Claimant has the residual functional capacity to perform medium
work lifting 25 pounds frequently and 50 pounds occasionally and occasionally crawl and climb
ramps and stairs but never climb ropes, ladders, and scaffolds.
In his decision the ALJ thoroughly discussed the medical evidence of record, activities of
daily living, limited medical treatment, and inconsistencies in the record. See Gray v. Apfel, 192
F.3d 799, 803-04 (8th Cir. 1999) (ALJ properly discredited claimant’s subjective complaints of
pain based on discrepancy between complaints and medical evidence, inconsistent statements, lack
of pain medications, and extensive daily activities). The ALJ then addressed several
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inconsistencies in the record to support his conclusion that Claimant’s complaints were not
credible.
Specifically, the ALJ noted that no treating physician in any treatment notes stated that
Claimant was disabled or unable to work or imposed functional limitations on Claimant’s capacity
for work. See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (significant that no
examining physician submitted medical conclusion that claimant is disabled or unable to work);
Edwards v. Secretary of Health & Human Servs., 809 F.2d 506, 508 (8th Cir. 1987) (examining
physician’s failure to find disability a factor in discrediting subjective complaints). The absence of
objective medical basis to support Claimant’s subjective descriptions is an important factor the
ALJ should consider when evaluating those complaints. Renstrom v. Astrue, 680 F.3d 1057,
1065 (8th Cir. 2012); Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995)(lack of objective
findings to support pain is strong evidence of lack of a severe impairment); Barrett v. Shalala, 38
F.3d 1019, 1022 (8th Cir. 1994)(the ALJ was entitled to find that the absence of an objective
medical basis to support claimant’s subjective complaints was an important factor in evaluating
the credibility of her testimony and of her complaints).
Further, the ALJ noted that Claimant’s finger was amputated in 1996, but he continued to
perform substantial gainful activity after that time. Absent a showing of deterioration, working
after the onset of an impairment is some evidence of an ability to work. See Goff v. Barnhart,
421 F.3d 785, 793 (8th Cir. 2005). Further, as noted by the ALJ, Claimant stopped performing
his past relevant work when the cafeteria closed. See Depover v. Barnhart, 349 F.3d 563, 566
(8th Cir. 2003) (claimant left his job because the job ended; therefore not unreasonable for the
ALJ to find that his suggested impairments were not as severe as he alleged); Weber v. Barnhart,
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348 F.3d 723, 725 (8th Cir. 2003) (noting that claimant left her job due to lack of transportation,
not due to disability).
Likewise, the ALJ noted how the medical record is devoid of any evidence showing that
Claimant’s condition has deteriorated or required aggressive medical treatment. Chamberlain v.
Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995) (failure to seek aggressive medical care is not
suggestive of disabling pain); Walker v. Shalala, 993 F.2d 630, 631-32 (8th Cir. 1993)( lack of
ongoing treatment is inconsistent with complaints of disabling condition). A review of the
medical record shows that Claimant has not reported to providers significant symptoms or
limitations stemming from the partial amputation of the left index finger as he alleges herein.
Moreover, he is right-handed dominant. While his left handgrip has been found to be slightly
reduced, it is noted as functional.
The undersigned notes how the medical record shows a four-year gap in treatment from
May 2006 until February 2010 undermines Claimant’s credibility concerning his disabling
impairments. Edwards v. Barnhart, 314 F.3d 964, 968 (8th Cir. 2003) (claimant’s failure to
pursue regular medical treatment detracted from credibility). Such gap suggests that Claimant’s
subjective complaints of disabling pain are not entirely credible. See Siemers v. Shalala, 47 F.3d
299, 302 (8th Cir. 1995) (citing Benskin v. Bowen, 830 F.2d 878, 884) (8th Cir. 1987) (holding
that the “claimant’s failure to seek medical treatment for pain” is a legitimate factor for an ALJ to
consider in rejecting a claimant’s subjective complaints of pain). “[T]he failure to seek medical
treatment for such a long time during a claimed period of disability tends to indicate tolerable
pain.” Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995); see Kelley v. Barnhart, 372 F.3d 958,
961 (8th Cir. 1994) (holding that infrequent treatment is a basis for discounting subjective
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complaints). Seeking limited medical treatment is inconsistent with claims of disabling pain.
Nelson v. Sullivan, 946 F.2d 1314, 1317 (8th Cir. 1991). Despite alleging disability since
February 2007, Claimant did not seek medical treatment until February 2010, three years after his
alleged onset date. Claimant received treatment only a couple of times during the relevant time
period, and he did not complain of any left hand difficulty. The ALJ noted that he did not have
health insurance during this time, but the record is devoid of any evidence suggesting that
Claimant sought any treatment offered to indigents. See Nelson v. Sullivan, 966 F.2d 363, 367
(8th Cir. 1992)(holding the mere use of nonprescription pain medication is inconsistent with
complaints of disabling pain); Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992)(finding it
is inconsistent with the degree of pain and disability asserted where no evidence exists that
claimant attempted to find any low cost medical treatment for alleged pain and disability). The
record does not document that Claimant was ever refused treatment due to insufficient funds. See
Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003) (recognizing that a lack of funds may
justify a failure to receive medical care; however, a plaintiff's case is buttressed by evidence he
related of an inability to afford prescriptions and denial of the medication); Riggins v. Apfel, 177
F.3d 689, 693 (8th Cir. 1999); Murphy, 953 F.2d at 386 (If a claimant is unable to follow a
prescribed regimen of medication and therapy to combat his difficulties because of financial
hardship, that hardship may be taken into consideration when determining whether to award
benefits). Here, as the ALJ points out, the record is devoid of any credible evidence showing that
Claimant was denied treatment due to lack of finances and thus inferred that Claimant did not
seek more frequent medical treatment more often, because he did not have a medical need for
such treatment. Case law permits the ALJ's reasonable inferences. See Pearsall, 274 F.3d at
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1218.
The ALJ also properly considered the inconsistencies between Claimant’s allegations and
his daily activities. Claimant retained the ability to do household chores, laundry, wash dishes,
watch television, and read. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001)
(“[i]nconsistencies between subjective complaints of pain and daily living patterns diminish
credibility”); Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (finding that activities such as
driving, shopping, watching television, and playing cards were inconsistent with the claimant's
complaints of disabling pain). Likewise, the undersigned notes in a treatment note, Dr. Baird
encouraged him to exercise five times a week.
After engaging in a proper credibility analysis, the ALJ incorporated into Claimant's RFC
those impairments and restrictions found to be 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."). The
ALJ determined that the medical evidence supported a finding that Claimant could perform
medium work. The vocational expert testified in response to a hypothetical question, that
incorporated the same limitations as the RFC, and opined that such individual could perform his
past relevant work as a meter collector, a laborer, and a cafeteria line worker.
As demonstrated above, a review of the ALJ's decision shows the ALJ not to have denied
relief solely on the lack of objective medical evidence to support his finding that Claimant is not
disabled. Instead, the ALJ considered all the evidence relating to Claimant's subjective
complaints, including the various factors as required by Polaski, and determined Claimant's
allegations not to be credible. Although the ALJ did not explicitly discuss each Polaski factor in
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making his credibility determination, a reading of the decision in its entirety shows the ALJ to
have acknowledged and considered the factors before discounting Claimant's subjective
complaints. See Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996). Inasmuch as the ALJ
expressly considered Claimant's credibility and noted numerous inconsistencies in the record as a
whole, and the ALJ's determination is supported by substantial evidence, such determination
should not be disturbed by this Court. Id.; Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996).
Because the ALJ gave multiple valid reasons for finding Claimant's subjective complaints not
entirely credible, the undersigned defers to the ALJ's credibility findings. See Leckenby v. Astrue,
487 F.3d 626, 632 (8th Cir. 2007) (deference given to ALJ's credibility determination when it is
supported by good reasons and substantial evidence); Guilliams v. Barnhart, 393 F.3d 798,
801(8th Cir. 2005).
The undersigned finds that the ALJ considered Claimant's subjective complaints on the
basis of the entire record before him and set out the inconsistencies detracting from Claimant's
credibility. The ALJ may disbelieve subjective complaints where there are inconsistencies on the
record as a whole. Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). The ALJ pointed out
inconsistencies in the record that tended to militate against the Claimant's credibility. See
Guilliams, 393 F.3d at 801 (deference to ALJ's credibility determination is warranted if it is
supported by good reasons and substantial evidence). Those included Claimant's medical
evidence of record, activities of daily living, limited medical treatment, and inconsistencies in the
record. The ALJ's credibility determination is supported by substantial evidence on the record as a
whole, and thus the Court is bound by the ALJ's determination. See Cox v. Barnhart, 471 F.3d
902, 907 (8th Cir. 2006); Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992). Accordingly,
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the ALJ did not err in discrediting Claimant's subjective complaints of pain. See Hogan v. Apfel,
239 F.3d 958, 962 (8th Cir. 2001)(affirming the ALJ's decision that claimant's complaints of pain
were not fully credible based on findings, inter alia, that claimant's treatment was not consistent
with amount of pain described at hearing, that level of pain described by claimant varied among
her medical records with different physicians, and that time between doctor's visits was not
indicative of severe pain).
For the foregoing reasons, the ALJ’s decision is supported by substantial evidence on the
record as a whole. Inasmuch as there is substantial evidence to support the ALJ's decision, this
Court may not reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court could have decided the case
differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Accordingly, the decision of the
ALJ denying Claimant’s claims for benefits should be affirmed.
B.
Obesity
Claimant’s contention that the ALJ failed to take into account his obesity when
formulating his RFC is without merit. Obesity is to be considered a “severe” impairment when,
alone or in combination with another medically determinable physical or mental impairment(s), it
significantly limits an individual’s physical or mental ability to do basic work activities.” Social
Security Ruling 02-10p, 2000 WL 628049, *4 (S.S.A. 2002). The Regulations provide that:
[o]besity is a medically determinable impairment that is often associated with
disturbance of the musculoskeletal system, and disturbance of this system can be a
major cause of disability in individuals with obesity. The combined effects of
obesity with musculoskeletal impairments can be greater that the effects of each of
the impairments considered separately. Therefore, when determining whether an
individual with obesity has a listing-level impairment or combination of
impairments, and when assessing a claim at other steps of the sequential evaluation
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process, including when assessing an individual’s residual functional capacity,
adjudicators must consider any additional and cumulative effects of obesity.
20 C.F.R. Pt. 404, Subpart P, Appx. 1, § 1.00(Q).
In the instant case, Claimant did not allege obesity as a disabling condition on his
applications,2 on forms he completed, including the Disability Report he completed pursuant to his
applications, or in his hearing testimony. In McNamara v. Astrue, 590 F.3d 607, 611 (8th Cir.
2010), the Eighth Circuit rejected an argument that the ALJ had erred by failing to discuss in her
decision the claimant’s obesity “as a potential work-related limitation.” The court noted that no
physician had “ever placed physical limitations on [the claimant’s] ability to perform work-related
functions because of her obesity.” Id. No had she described such in an application report or in
her testimony. Id.
It is important to note that all of Claimant’s treating and examining doctors were aware of
his obesity, but none of the doctors who examined or treated Claimant provided an opinion or
imposed limitations greater than that identified by the ALJ. See Forte v. Barnhart, 377 F.3d 892,
896 (8th Cir. 2004) (“Although his treating doctors noted that Forte was obese and should lose
weight, none of them suggested his obesity imposed any additional work-related limitations, and
he did not testify that his obesity imposed additional restrictions.”). The Eighth Circuit found that
the omission of obesity did not constitute reversible error. Id. at 612. The ALJ’s consideration of
these medical records demonstrates that the ALJ necessarily considered his obesity. Further,
2
The undersigned notes that the fact that Claimant did not allege obesity in his applications for
disability benefits is significant See Kirby v. Astrue, 500 F.3d 705, 707-09 (8th Cir. 2007)
(impairment is not severe if it is only slight abnormality that would not significantly limit mental
ability to do basic work activities; claimant bears the burden of establishing impairment’s
severity). Further, Claimant did not testify at the hearing that his obesity affected his ability to
function.
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Claimant presented no evidence that his obesity imposed work-related limitations or that he
testified as to any limitations related to his obesity. See McNamara v. Astrue, 590 F.3d 607, 61112 (8th Cir. 2010). In McNamara, like the instant case, the ALJ did not make any finding
regarding Claimant’s obesity. The Eighth Circuit rejected McNamara’s argument that the failure
to discuss obesity was a legal error. Id. at 611.
Although the decision does not specifically discuss his obesity on his ability to perform
work-related activities, the decision clearly supports the finding that he did not have an
impairment or combination of impairments that met or equaled one of the listed impairments. The
ALJ’s decision demonstrates that the ALJ properly considered his impairments in combination.
The ALJ specifically found that Claimant did not have an impairment or “combination of
impairments” that met or equaled a listing. The Eighth Circuit has stated that “[t]o require a more
elaborate articulation of the ALJ’s thought processes would not be reasonable.” Browning v.
Sullivan, 958 F.2d 817, 821 (8th Cir. 1992); Kisling v. Chater, 105 F.3d 1255, 1258 (8th Cir.
1997). The ALJ then stated that he considered all of Claimant’s medically determinable
impairments when evaluating his credibility. See 20 C.F.R. §§ 404.1523, 416.923. The ALJ
further stated that he considered the “entire record” when determining his RFC.
Likewise, the undersigned finds the record is devoid of any evidence supporting
Claimant’s contention that his obesity is a severe impairment. First, Claimant never alleged that
his obesity was disabling, and he presented no medical evidence substantiating this claim.
Claimant never alleged any limitation in function as a result of his obesity in his application for
benefits. In the instant case, Claimant did not cite any physical limitations caused by his obesity in
reports or in his testimony. Indeed, the medical evidence is devoid of any support. In follow-up
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treatment, Dr. Baird encouraged him to exercise for at least thirty minutes each day five or more
days a week and suggested exercise included brisk walking, dancing, biking, or any other type of
physical activity that elevates the heart rate. Accordingly, this claim is without merit.
“Ultimately, the claimant bears the burden of proving disability and providing medical
evidence as to the existence and severity of an impairment. Kamman v. Colvin, 721 F.3d 945,
950 (8th Cir. 2013). For the reasons set forth above, Claimant has failed to carry this burden.
McNamara, 590 F.3d at 611-12 (claimant’s failure to testify about any work-related limitations
caused by allegedly disabling condition undermined claim).
C.
Failure to Consider Impairments as Severe
Step two of the five-step evaluation provides that a claimant is not disabled if her
impairments are not “severe” and have lasted or are expected to last for at least 12 months. 20
C.F.R. § 416.920(a)(4)(ii); § 416.909 (duration requirement). An impairment is not severe if it
amounts only to a slight abnormality that would not significantly limit the claimant’s physical or
mental ability to do basic work activities. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). It
is the claimant’s burden to establish that his impairment or combination of impairment are severe.
Id.. “Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless
standard.” Id. at 708 (citations omitted).
The ALJ found Claimant to have the severe impairments of mild degenerative disc disease
of the cervical spine and partial amputation of the left index finger, and the nonsevere impairment
of hypertension, a fused joint on the third left finger, and muscle calcification of the knees. (Tr.
22). The ALJ’s determination is supported by substantial evidence in the record. The ALJ
rejected his claim of severe impairment due to muscle calcification of the knees by citing how the
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record contains the January 19, 2010 x-ray of his knees showing there was calcification at
attachment of quadriceps and patella tendon to the superior, but no degenerative changes within
the right knee joint. The x-ray further showed the same calcification in quadriceps attachment to
patella as on right. Likewise, the ALJ rejected his claim of severe impairment due to hypertension
by citing to the February 23, 2010 treatment note where Dr. Baird assessed his hyperlipidemia and
hypertension as benign. The ALJ correctly relied on the medical evidence in finding these
impairment to be not severe, medically-determinable impairment.
For the foregoing reasons, the ALJ’s decision is supported by substantial evidence on the
record as a whole. Inasmuch as there is substantial evidence to support the ALJ's decision, this
Court may not reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court could have decided the case
differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Accordingly, the decision of the
ALJ denying Claimant’s claims for benefits should be affirmed.
D.
Medical Source Opinions
Finally, Claimant argues that the ALJ failed to explicitly weigh the medical source
opinions. He contends that remand is necessary so that the ALJ can explicitly explain the weight
he afforded to the non-examining medical expert witness, Dr. Winkler.
Because Drs. Bhattacharya, Mendoza, and Park did not treat Claimant and only performed
consultative examinations, their opinions are not entitled to controlling weight. See Teague v.
Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (“A single evaluation by a nontreating [medical source]
is generally not entitled to controlling weight.”). Nevertheless, the ALJ is required to consider
every medical opinion he or she receives. See C.F.R. §§ 404.1527(c), 416.927(c) (“Regardless of
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the source, we will evaluate every medical opinion we receive.”). Where an opinion is not given
controlling weight as the opinion of a treating source, the weight given to the opinion depends on
a number of factors, including whether the source has examined the claimant, whether and how
often the source has treated the claimant, the relevant evidence provided in support of the
opinion, the consistency of the opinion with the record as a whole, whether the opinion is related
to the source’s area of speciality, and other factors. 20 C.F.R. §§ 404.1527(c), 416.927(c).
Opinions from non-treating sources are evaluated using factors set forth in 20 C.F.R. §§
404.1527(d) and 416.927(d).
At the hearing, Dr. Winkler, a non-examining medical expert, testified that based on her
review of the record and the varying assessments3 in the record including the last assessment
indicating normal grip of both hands, Dr. Winkler did not find Claimant to have any manipulative
limitations and that the amputation on his left hand would not affect his ability to lift weights.
The ALJ discussed the consultative opinions and found the impairments did not impose
limitations of such significance as to preclude sustained competitive employment. The ALJ noted
3
On December 12, 2005, Dr. Sawwath Bhattacharya completed an internal medicine
examination on referral by Disability Determinations and noted his left index finger was amputated
from the proximal interphalangeal joint and observed somewhat decreased movement in the
metatarsophalangeal joint and his hand grip slightly reduced. In the Range of Motion Values, Dr.
Bhattacharya rated his grip strength as a four out five in his left hand and a four plus out of five in
his right hand. Dr. Bhattacharya found his handgrips to be slightly reduced but functional.
In a consultative internal medicine examination in December 2009, Dr. Mendoza rated his
grip strength as a three out of five in his left hand and a five out of five on his right hand in the
Range of Motion Values and noted he is right-handed. Claimant reported how he has not seen a
doctor since 2006, and he cleans the apartment, cooks and goes to the grocery store. In the
Clinical Impression, Dr. Mendoza noted he has less grip in the left hand.
On July 6, 2011, Dr. Park completed an internal medicine examination on referral by
disability determinations and noted how he sustained trauma to his left index finger resulting in the
amputation in 1996. In the Range of Motion Values, Dr. Park found Claimant to have grip
strength rated at five in both hands and able to make a fist and his can be opposed.
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how the limitations imposed on his manipulative abilities with his left hand by Dr. Mendoza were
inconsistent with other substantial evidence in the medical record and thus questionable. It is the
duty of the ALJ to weigh the evidence of record. See e.g., Richardson v. Perales, 402 U.S. 389,
399 (1971). Opinions of consultative examiners may be discredited by other evidence in the
record. The ALJ reasonably discredited the limitations imposed by Dr. Mendoza that the ALJ
found to be inconsistent with the record as a whole. Under the circumstances, the undersigned
finds that the ALJ fulfilled his responsibilities under the Regulations, by explaining and justifying
the weight that was given to the medical source opinions by opining why he found some opinions
more persuasive the others. Although the record contained conflicting medical opinions as
professed by consultative physicians, the ALJ’s obligation is to weight the competing evidence
and draw findings based upon the substantial weight of the evidence of record.
The undersigned finds that the ALJ's determination is supported by substantial evidence on
the record as a whole. "It is not the role of [the reviewing] court to reweigh the evidence
presented to the ALJ or to try the issue in this case de novo." Wiese v. Astrue, 552 F.3d 728, 730
(8th Cir. 2009) (citation omitted). "If after review, [the court] find[s] it possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner's
findings, [the court] must affirm the denial of benefits." Id. (quoting Mapes v. Chater, 82 F.3d
259, 262 (8th Cir. 1996)). Accordingly, the decision of the ALJ denying Claimant's claims for
benefits should be affirmed.
The substantial evidence on the record as a whole supports the ALJ's decision. Where
substantial evidence supports the Commissioner's decision, the decision may not be reversed
merely because substantial evidence may support a different outcome. Woolf v. Shalala, 3 F.3d
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1210, 1213 (8th Cir. 1993) (quoting Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992)).
Therefore, for all the foregoing reasons,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the final decision of
the Commissioner denying social security benefits be AFFIRMED.
Judgment shall be entered accordingly.
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of January, 2015.
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