Tomlin v. Colvin

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and plaintiffs Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Shirley P. Mensah on 1/5/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL P. TOMLIN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 4:13CV2424 SPM

MEMORANDUM AND ORDER
Plaintiff Michael P. Tomlin brings this action under 42 U.S.C. § 405(g) for
judicial review of the Commissioner’s final decision denying his application for
disability insurance benefits (DIB) filed pursuant to Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq. All matters are pending before the undersigned
United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C.
§ 636(c). Because the Commissioner’s final decision is supported by substantial
evidence on the record as a whole, it is affirmed.
I. Procedural History
On March 23, 2011, the Social Security Administration denied plaintiff’s
March 7, 2011, application for DIB in which he claimed he became disabled on
April 15, 2010, because of chronic chostri, IgA nephropathy, reactive airway

disease, memory loss, joint pain, medications, back pain, and fatigue. (Tr. 54, 5962, 111-12, 131.) Plaintiff subsequently amended his alleged onset date to
September 17, 2010. (Tr. 127.) Upon reconsideration, the SSA continued to deny
plaintiff’s claim. (Tr. 56.) At plaintiff’s request, a hearing was held before an
administrative law judge (ALJ) on August 13, 2012, at which plaintiff and a
vocational expert testified. (Tr. 32-52.) On August 28, 2012, the ALJ denied
plaintiff’s claim for benefits, finding plaintiff able to perform other work as it
exists in significant numbers in the national economy. (Tr. 11-28.) On September
27, 2013, the Appeals Council denied plaintiff’s request for review of the ALJ's
decision. (Tr. 1-6.) The ALJ's determination thus stands as the final decision of
the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff claims that the ALJ’s
decision is not supported by substantial evidence on the record as a whole, arguing
that the ALJ erred in determining his residual functional capacity (RFC) by
improperly evaluating the treatment records and by failing to include additional
limitations in the RFC assessment. Plaintiff also contends that the ALJ erred in
finding his subjective complaints not to be credible and by failing to accord
sufficient weight to the opinion of his treating physician. Plaintiff also claims that
the hypothetical question posed by the ALJ to the vocational expert did not include
all of his limitations, including limitations as found by the ALJ in her written
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decision, and thus that the ALJ erred in relying on the expert’s response to find
plaintiff not disabled. Plaintiff requests that the final decision be reversed and that
the matter be remanded for an award of benefits or for further consideration. For
the reasons that follow, the ALJ did not err in her determination.
II. Testimonial Evidence Before the ALJ
A.

Plaintiff’s Testimony
At the hearing on August 13, 2012, plaintiff testified in response to

questions posed by the ALJ and counsel. At the time of the hearing, plaintiff was
forty years of age.
Plaintiff stands six feet, six inches tall and weighs 320 pounds. (Tr. 41-42.)
Plaintiff lives in a condominium with his mother. (Tr. 35, 47.) Plaintiff has an
associate’s degree and also received training as a truck driver. (Tr. 35.) Plaintiff
served in the military from 1990 to 1993. (Tr. 142.)
Plaintiff’s Work History Report shows that plaintiff worked as an over-theroad truck driver from February 2003 to December 2005. From December 2005 to
May 2009, plaintiff worked as driver for a repossession company. From
November 2009 to February 2010, plaintiff worked as a pizza maker for Imo’s
Pizza. From February to May 2010, plaintiff worked as a cabaret manager. In
May 2010, plaintiff worked again doing car repossession. (Tr. 142.) Plaintiff
testified that he also previously performed work as an architectural draftsman,
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architectural engineer, telephone collection agent, and telephone salesperson. (Tr.
37-38.)
Plaintiff testified that he has degenerative disease in the spine at L4 and L5,
which limits his ability to stand or sit for too long. Plaintiff testified that his back
condition stopped him from continuing his job as a repossession officer because he
could no longer crawl under vehicles to hook them up. Plaintiff testified that his
inability to return to work is what prompted him to move back to St. Louis and
receive care at the Veterans Administration (VA) hospital. (Tr. 41, 44.)
Plaintiff testified that he also has IgA nephropathy, known as Berger’s
disease. (Tr. 41.) Plaintiff testified that his kidneys currently function at forty-two
percent and that he must start dialysis if the functioning decreases to thirty percent.
Plaintiff testified that the disease makes it difficult to keep enough fluid in his
system, making him susceptible to dehydration. Plaintiff testified that he was
recently hospitalized for dehydration. Plaintiff must drink an “enormous amount”
of fluids to keep up with his kidney function. Plaintiff testified that his kidney
ailment puts additional strain on his lower back. Plaintiff testified that the kidney
disease also causes extreme fatigue, and he must continually lie down for one to
two hours after being up for one hour. Plaintiff cannot keep up with the fatigue,
and he naps five or six times a day. (Tr. 42-43, 45.)
Plaintiff testified that he sees his doctors at least four times a month and
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takes medication for his conditions. Plaintiff testified that he experiences side
effects from his medication, including drowsiness, night sweats, and nightmares.
Plaintiff testified that the fatigue brought on by his medication adds to his general
level of fatigue. (Tr. 44, 48.)
As to his exertional abilities, plaintiff testified that he can walk about 200 to
300 feet at one time at a slow pace without becoming exhausted. Plaintiff feels
pressure on his spine after walking such a distance. Plaintiff can stand in one place
for about thirty to forty-five minutes. He can sit for about forty-five minutes at one
time. Plaintiff testified that he can lift up to eighty pounds but only about twenty
pounds without pain. (Tr. 45-46.)
As to his daily activities, plaintiff testified that his mother makes him
breakfast when he wakes up, after which he does the dishes. Plaintiff testified that
he takes his medication during breakfast and usually falls asleep about forty-five
minutes later because of its effects. Plaintiff testified that he watches television
after waking up and then helps clean, eats lunch, and takes his second round of
medication. Plaintiff testified that he naps again for another hour or two, after
which he watches television and then takes another nap before dinner. Plaintiff
takes his third round of medication with dinner, after which he naps until 8:00 or
9:00 p.m. Plaintiff testified that he then helps his mother and does odds and ends
around the house until he goes to bed. Plaintiff sleeps about three or four hours at
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night. (Tr. 46-47.) Plaintiff testified that he sometimes prepares his own meals but
that his mother usually cooks. Plaintiff occasionally cleans the dishes. Plaintiff
testified that he leaves his home for doctors’ visits, but otherwise does not leave
more than once a month. Plaintiff does not shop and is not involved in any
volunteer organizations. (Tr. 47-48.)
Plaintiff smokes one-half pack of cigarettes a day. (Tr. 48.) Plaintiff last
had a drink six months prior to the hearing. (Tr. 40.)
B.

Testimony of Vocational Expert
Delores Gonzalez, a vocational expert, testified at the hearing in response to

questions posed by the ALJ.
Ms. Gonzalez classified plaintiff’s past work as an architectural drafter and
engineering drafter as sedentary and skilled; as a customer service representative
and telemarketer as sedentary and semi-skilled; as a bill collector as light and semiskilled; as a cabaret manager as light and skilled; and as a pizza maker, tractortrailer truck driver, and tow truck/repossession driver as medium and semi-skilled.
(Tr. 49-50.)
The ALJ asked Ms. Gonzalez to consider plaintiff to be limited to medium,
unskilled work. Ms. Gonzalez testified that plaintiff could not perform any of his
past relevant work but could perform other work such as motor vehicle assembler,
of which 27,030 such jobs exist in the State of Missouri and 952,300 nationally;
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farm/grain worker, of which 790 such jobs exist in the State of Missouri and
233,280 nationally; and trimmer, of which 4,515 such jobs exist in the State of
Missouri and 186,948 nationally. (Tr. 50-51.)
III. Medical Records Before the ALJ
Plaintiff visited the VA Medical Center on July 14, 2010, as a new patient
with complaints of pain in his kidneys with no burning. Plaintiff also complained
of constant pain in his sternum. Plaintiff reported that his bowels were regular, and
he had no arthralgias. It was noted that plaintiff had just moved from Phoenix. Dr.
Rama D. Bandi noted plaintiff’s current conditions to include hypertension,
obesity, hyperlipidemia, nephrolithiasis, bilateral flank pain, migraines, depression,
lipoma, and hematuria. Plaintiff was taking no medications. Physical examination
was unremarkable. Depression screening yielded positive results. A learning
assessment showed plaintiff to be forgetful but that he had a good level of
understanding. Atenolol was prescribed for hypertension. Plaintiff was advised to
quit smoking. Plaintiff declined to participate in a weight management program.
Laboratory tests were ordered, and plaintiff was referred to Psychology for
depression. In response to alcohol screening, plaintiff reported that he had had one
or two drinks once a month or less during the previous year. (Tr. 450-56.)
Plaintiff visited the Psychology unit that same date for initial evaluation.
Plaintiff reported having poor sleep and decreased interest. It was noted that
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plaintiff had been out of work for one and a half years. Plaintiff’s energy and
concentration were normal. Plaintiff denied any suicidal ideation. Plaintiff
reported having vague feelings of anger and frustration. Plaintiff’s mood was
depressed and his affect edgy. Plaintiff’s thought content was logical and concrete,
and his judgment and insight were adequate. Plaintiff reported occasional alcohol
use and denied ever drinking to excess. Plaintiff was referred to the Mental Health
Clinic. (Tr. 449-50.)
Plaintiff visited Dr. Fred W. Gaskin in the Psychiatry unit at the VA on July
30, 2010. Plaintiff reported that he was an alcoholic and drank heavily until he
was twenty-nine years of age and continued to drink until age thirty-six. Plaintiff
reported that he had significantly decreased his drinking and had had maybe two
beers in the past two months. Plaintiff reported being down and irritable and that
he did not trust anyone. Plaintiff had a low mood with thoughts that he would be
better off dead, but he was not suicidal. Plaintiff reported a twenty-year history of
sleeping one or two hours at night. Plaintiff reported an increase in weight but no
change in appetite. It was noted that plaintiff had gained twenty-four pounds
within the previous month and currently weighed 308 pounds. Plaintiff reported
having had various jobs and being unemployed for two months. Mental status
examination showed plaintiff to be depressed and irritable. Plaintiff’s memory and
concentration were good, as well as his insight and judgment. Dr. Gaskin
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diagnosed plaintiff with depression and assigned a Global Assessment of
Functioning (GAF) score of 55.1 Bupropion was prescribed. (Tr. 439-45.)
Plaintiff returned to Dr. Gaskin on August 27 and reported not feeling any
different with the medication. Plaintiff denied any medication side effects.
Plaintiff was noted to be upset because he had not yet received any test results
regarding his kidneys. Plaintiff’s blood pressure was elevated. No edema was
noted in the extremities. Plaintiff reported having fair sleep. Mental status
examination showed plaintiff to be sullen and irritable but was otherwise normal.
Plaintiff was instructed to increase Bupropion. (Tr. 430-34.)
Plaintiff visited Dr. Michael I. Rauchman on September 17, 2010, for a
nephrology consult. Plaintiff reported having low back pain and a recent onset of
lower abdominal pain. Physical examination showed mild tenderness about the
right lower quadrant. No edema was noted. Upon review of recent lab results and
diagnostic testing, Dr. Rauchman diagnosed plaintiff with nephrotic range
proteinuria with eGFR at a value demonstrating stage 3, or moderate, kidney
damage2 with clinical presentation that strongly suggested underlying
1

A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score between 51 and 60 indicates moderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
2

The test for estimated Glomerular Filtration Rate (eGFR) is used to screen for and detect
kidney damage. eGFR, American Ass’n for Clinical Chemistry (last modified Apr. 3, 2014),
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glomerulonephritis (GN) with IgA3 “as a leading contender.” Dr. Rauchman also
diagnosed plaintiff with hypertension, possibly secondary to underlying GN,
exacerbated by high salt intake, obesity, and progressive chronic kidney disease;
and nephrolithiasis, likely idiopathic hypercalciuria. Lisinopril was added to
plaintiff’s medication regimen. Additional laboratory testing was ordered, and
plaintiff was instructed to work with his primary care physician on smoking
cessation and weight loss given the risk factors associated with chronic kidney
disease. (Tr. 427-28.)
Results of a renal biopsy performed on September 29 confirmed IgA
nephropathy. Dr. Rauchman noted about half of the glomeruli to be globally
sclerosed with moderate tubular atrophy and interstitial fibrosis. Dr. Rauchman
reported laboratory results to show a risk of progression, and he prepared a
treatment regimen that included medication as well as instructions for plaintiff to
attain good blood pressure control, lose weight, and stop smoking. Dr. Rauchman
determined not to prescribe steroids because of concern regarding side effects and,
further, because the biopsy showed chronic changes without a lot of potentially
reversible inflammation. (Tr. 410-11.)
available at <http://labtestsonline.org/understanding/analytes/gfr/tab/test/>.
3

IgA nephropathy (Berger’s disease) occurs when too much of the IgA protein/antibody is
deposited in the kidneys, leading to inflamed and damaged structures in the kidneys. IgA
nephropathy, Medline Plus (last updated Nov. 7, 2014)<http://www.nlm.nih.gov/medlineplus/
ency/article/000466.htm>.
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Plaintiff returned to Dr. Gaskin on October 8, 2010, and reported no change
in his mood and that he continued to be irritable. Plaintiff reported a decrease in
his smoking in that he was down to three or four cigarettes a day. It was noted that
plaintiff’s sleep was good, and he had good concentration. No change was made to
plaintiff’s treatment regimen. (Tr. 406-10.)
Plaintiff visited Dr. Bandi on November 10, 2010, who noted plaintiff’s
recent diagnosis of kidney disease. Plaintiff complained of having chronic
diarrhea for over fifteen years and that he currently had bowel movements three to
six times a day. Plaintiff reported the episodes to occur as soon as he eats.
Plaintiff reported smoking one pack of cigarettes a day and occasional use of
alcohol. Plaintiff’s current medications were noted to include Atenolol,
Bupropion, Lisinopril, and Venlafaxine. Physical examination was unremarkable.
Dr. Bandi determined plaintiff’s hypertension to be stable. Plaintiff was instructed
to continue with his medication and to return in six months. (Tr. 403-06.)
Plaintiff returned to Dr. Gaskin on November 22, 2010, and reported not
much change and that he continued to have a low mood. Plaintiff reported that he
was forced to be more active because his mother had surgery. Dr. Gaskin noted a
slight weight gain and that plaintiff currently weighed 313 pounds, but that he was
not grossly obese given that he was a “big guy.” Plaintiff agreed to a clinical trial
of Topamax for migraines as well as to the addition of an anticonvulsant to
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decrease risk of seizure. Plaintiff’s Bupropion and Venlafaxine were increased.
Dr. Gaskin noted that such an increase may relieve some of plaintiff’s
gastrointestinal issues. Mental status examination showed plaintiff’s mood and
affect to be slightly brighter but was otherwise unchanged. (Tr. 399-403.)
On that same date, November 22, plaintiff visited Dr. Brian K. Dieckgraefe,
a gastroenterologist, with complaints of chronic diarrhea and having five or six
bowel movements each day during the previous six months with such episodes
occurring about five minutes after eating. Plaintiff reported a history of being a
severe alcoholic until age twenty-eight, but that he currently drank maybe one beer
every six months. Plaintiff reported having abdominal and rectal pain with some
dyspepsia, frequent reflux symptoms, dysphagia, and hematemesis. Physical
examination was unremarkable. Diagnostic studies were ordered. (Tr. 395-99.)
During a follow up visit with Dr. Rauchman on November 23, plaintiff was
encouraged to lose weight and stop smoking in order to reduce the risk of
progression of his chronic kidney disease. Plaintiff was also encouraged to
increase his fluid intake. (Tr. 394-95.)
An esophagogastroduodenoscopy performed on January 3, 2011, yielded
positive findings for esophageal ulcers and gastropathy. A colonoscopy performed
that same date yielded positive results for polyps and internal hemorrhoids. (Tr.
457-60, 460-63.) Imodium was prescribed for diarrhea. (Tr. 225.)
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Plaintiff returned to Dr. Dieckgraefe on January 24, 2011, and reported his
diarrhea to have resolved, possibly because of medication. Dr. Dieckgraefe opined
that plaintiff may have irritable bowel syndrome. Physical examination was
normal. Plaintiff weighed 321 pounds. Plaintiff was instructed to take Lopermide
and Omeprazole for gastroesophageal reflux disease and esophageal ulceration.
Plaintiff was instructed to return as needed. (Tr. 380-84.)
Plaintiff visited Dr. Gaskin that same date, January 24, and reported that he
was more irritable and depressed after having run out of Venlafaxine one week
prior. Plaintiff also reported sleeping better while taking Venlafaxine. Plaintiff
was restarted on the medication and was also prescribed Abilify. Mental status
examination showed plaintiff to be depressed and irritable but was otherwise
normal. Plaintiff was assigned a GAF score of 55. (Tr. 376-80.) On February 23,
plaintiff reported not being as irritable but that he was experiencing some
shakiness. Plaintiff reported having no side effects from his medications. No
tremors were noted during examination. Plaintiff reported his sleep to be okay.
Plaintiff had lost weight. Plaintiff reported eating healthier but not exercising
because of exhaustion. Dr. Gaskin noted that plaintiff was a bit irritable but was
better than in the past. No change was made to plaintiff’s medication regimen. A
GAF score of 58 was assigned. (Tr. 366-70.)
Plaintiff returned to Dr. Rauchman on March 8, 2011, and complained of
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intermittent ankle swelling, severe bilateral knee pain with intermittent swelling,
stiffness in the lower back, and slight dysuria. Physical examination showed
minimal tenderness with palpation about the knees, but was otherwise
unremarkable with no edema or swelling. No flank tenderness was noted. Dr.
Rauchman opined that plaintiff’s arthritic symptoms could suggest
spondyloarthropathy associated with IgA. X-rays were ordered and plaintiff was
referred to Rheumatology. Otherwise, plaintiff’s IgA nephropathy was considered
to be stable. Plaintiff’s hypertension was noted to be under reasonable control.
Plaintiff was encouraged to increase his fluid intake. (Tr. 364.)
X-rays of the lumbosacral spine dated March 11, 2011, showed mild
hypertrophic spurring at L4-L5. (Tr. 350-51.) X-rays of the left knee yielded
negative results. (Tr. 350.)
On March 17, 2011, Dr. Denise R. Trowbridge, a medical consultant with
disability determinations, completed a Physical RFC Assessment in which she
opined that plaintiff could occasionally lift and carry twenty pounds, frequently lift
and carry ten pounds, stand and/or walk for a total of six hours in an eight-hour
workday, sit for a total of six hours in an eight-hour workday, and was unlimited in
his ability to push and/or pull. Dr. Trowbridge opined that plaintiff should never
climb ladders, ropes, or scaffolds but could occasionally balance, stoop, kneel,
crouch, crawl, and climb ramps and stairs. Dr. Trowbridge further opined that
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plaintiff had no manipulative, visual, or communicative limitations. Dr.
Trowbridge further opined that plaintiff should avoid concentrated exposure to
vibration and hazards. (Tr. 464-69.)
On March 22, 2011, Gretchen Brandhorst, Psy.D., a psychological
consultant with disability determinations, completed a Psychiatric Review
Technique Form in which she opined that plaintiff’s depression was not a severe
mental impairment. Dr. Brandhorst specifically opined that plaintiff experienced
no limitations in activities of daily living or in maintaining concentration,
persistence, or pace; mild limitations in maintaining social functioning; and no
episodes of decompensation of extended duration. (Tr. 470-80.)
A CT scan of the abdomen dated March 31, 2011, showed no evidence of
renal, ureteral calculi; no hydronephrosis; and no hydroureter. (Tr. 483-85.)
Plaintiff visited Dr. Hector Molina-Vicety, a rheumatologist, on April 14,
2011, for evaluation of ongoing low back pain that was tolerable at a level two out
of ten, and increasing knee pain which he occasionally experienced at a level
seven. Plaintiff reported a history of smoking for fifteen years and a history of
drinking alcohol that he stopped in 1995. Physical examination showed mild
discomfort upon pushing down on the patella bilaterally and moderate pain upon
palpation of the medial joint line. Pain was noted about the ankles with palpation.
Plaintiff also experienced pain upon palpation to the SI area with limited range of
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motion due to stiffness. Straight leg raising was negative. Dr. Molina-Vicety
noted examination and diagnostic studies to be essentially unremarkable.
Additional laboratory and diagnostic testing was ordered, and plaintiff was referred
to physical therapy for exercises and modalities for pain control. Plantar arches
and knee braces were ordered, and plaintiff was instructed to take acetaminophen,
apply analgesic cream, and try to lose weight. (Tr. 548-51.)
X-rays of the sacroiliac joints dated April 15, 2011, yielded negative results.
(Tr. 483.)
Plaintiff visited Dr. Gaskin on April 25, 2011, and reported having a better
mood and not being as irritable. Plaintiff reported that knee pain interfered with
his sleep, and it was noted that plaintiff napped about four times a day for about an
hour each time. Plaintiff denied suicidal thoughts but reported being down and
thinking that he might be better off dead. Dr. Gaskin noted plaintiff to be irritable.
Mental status examination was otherwise unremarkable. Dr. Gaskin continued
plaintiff on his medication regimen and assigned a GAF score of 55. (Tr. 544-48.)
Plaintiff began physical therapy for left knee pain on June 6, 2011. Plaintiff
reported that he must constantly move and cannot stand in one place, but that he
experiences increased grinding and pain in the knee with prolonged walking.
Plaintiff reported the pain to also interfere with his sleep. Plaintiff reported that
wearing a knee brace and resting helped relieve his symptoms. Physical
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examination showed limited range of motion about the left knee and poor hip
abduction. Tenderness was noted about the left quad and left lateral femoral
condyle. Slight increase of superficial patellar pain was noted with compression.
Referred pain to the knee was noted with palpation of the vastus lateralis and
rectus femoris. Plaintiff participated in physical therapy and was given instruction
as to home exercises. He was further instructed to participate in therapy for eight
weeks. (Tr. 514-17.)
Plaintiff visited Dr. Laura J. Kroupa for a general examination on June 7,
2011, and reported that treatment for kidney stones had helped his kidney pain but
that he continued to have low back pain that worsened with exercise. Plaintiff
reported taking Tylenol for the pain. Plaintiff also reported shortness of breath
with exercise and heavy breathing in general. Plaintiff reported his diarrhea to be
better with medication. Plaintiff was instructed to continue with his medications
and to increase Tylenol. Plaintiff was also prescribed nicotine patches to help with
smoking cessation. A referral for a chiropractic consult was made as well as a
referral for pulmonary function tests. (Tr. 537-39.)
Plaintiff was discharged from physical therapy on July 1 with reports of
improvement, less grinding of the knee, and less need for the brace. Plaintiff was
instructed to continue with home exercises. (Tr. 534-37.)
Plaintiff returned to Dr. Molina-Vicety on July 14, 2011, who noted no
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evidence of inflammatory arthritis. Dr. Molina-Vicety noted plaintiff to have
responded “great” to physical therapy and analgesic cream, with good response
also noted with knee bracing. Physical examination showed pain upon palpation to
the lumbar area at L5-S1 with limited range of motion due to stiffness. Straight leg
raising was negative. Dr. Molina-Vicety opined that plaintiff’s pain was
mechanical in nature due to his weight and previous history of playing football and
basketball with injury to the left knee. Plaintiff was instructed to perform low back
exercises and to continue to lose weight. Capsaicin cream was prescribed for the
low back, and plaintiff was to continue with acetaminophen. (Tr. 531-33.)
In a letter addressed to “To whom it may concern” dated July 15, 2011, Dr.
Molina-Vicety wrote that he was treating plaintiff for low back pain possibly
related to mild hypertrophic spurring of the lumbar vertebra at L4-L5, consistent
with early degenerative changes. Dr. Molina-Vicety further wrote that plaintiff
“cannot stay in a sitting position for [a] prolonged period of time due to
exacerbation of his pain. Please take this into consideration and accommodate . . .
as needed to minimize discomfort related to his lower back condition.” (Tr. 626.)
Plaintiff underwent pulmonary function testing on July 26, 2011, the results
of which were essentially normal. (Tr. 508-11.)
On that same date, July 26, plaintiff returned to Dr. Rauchman who noted
plaintiff’s IgA nephropathy to be relatively stable and his hypertension to be under
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reasonable control. Dr. Rauchman noted plaintiff to have active kidney stone
disease with passing of small stones. Plaintiff was prescribed Allopurinol and his
other medications were adjusted. Plaintiff was instructed to lose weight and to
increase his fluid intake. (Tr. 531.)
Plaintiff visited Dr. Gaskin on August 11, 2011, and reported that he felt like
a zombie. Dr. Gaskin determined to decrease plaintiff’s Abilify. Plaintiff’s current
medications included Albuterol, Allopurinol, Aripiprazole, Atenolol, Bupropion,
Capsaicin, Lisinopril, Loperamide, Omeprazole, Topiramate, and Venlafaxine.
Plaintiff reported no side effects. Plaintiff reported having no migraines since
taking Topamax. It was noted that plaintiff had just returned from spending two
weeks in Arizona. Plaintiff had no thoughts of harming himself or others. Mental
status examination showed plaintiff to be depressed and irritable. Plaintiff reported
his sleep to be fair. A GAF score of 55 was assigned. (Tr. 526-30.)
On August 16, 2011, plaintiff visited Dr. Kroupa for general follow up
examination. Plaintiff reported having quit smoking about eight weeks prior but
admitted to having half a cigarette a few days a week. Plaintiff reported passing a
lot of kidney stones and that back pain continued to be a problem. Plaintiff
reported that taking extra Tylenol did not provide relief. Plaintiff’s mother
reported that plaintiff also experienced daytime somnolence, restless sleep, and
extensive snoring. Plaintiff was referred to the sleep clinic and was subsequently
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issued a CPAP machine given his signs and symptoms of obstructive sleep apnea,
including snoring, breathing cessation, and frequent awakening. (Tr. 524-26, 61921.)
Plaintiff underwent a chiropractic consultation on September 2, 2011, for
low back pain. Plaintiff described the pain to be sharp when he moves and to
otherwise be a dull ache. Plaintiff reported that sitting causes the most pain but
that he feels no pain when he walks. Plaintiff reported that he lies down to relieve
the pain. Plaintiff reported not taking any medication for the pain because of his
kidney disease and that stretching aggravates the pain. Plaintiff reported that he
was previously employed as a repossession driver but that such work “did not
require a lot from his low back.” Examination showed tenderness and restriction
about the right L1-2 and L3-4, and the SI bilaterally. Plaintiff’s lumbar paraspinals
and QL were noted to be tight bilaterally. Sensory and motor examinations were
normal. Upon review of previous diagnostic studies, chiropractor Pamela J.
Wakefield diagnosed plaintiff with low back pain with associated segmental
dysfunction and hypertonic musculature complicated by mild degenerative
changes. Chiropractic adjustments were made to the lumbar spine, pelvis, and
lumbar paraspinals, and plaintiff reported feeling “very good” after treatment. (Tr.
500-05.) On September 16, plaintiff reported his pain to have worsened, especially
with sitting. Tenderness and hypertonicity was noted about the thoracolumbar
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erectors and quadratus lumborum. Chiropractic adjustments were made, and
plaintiff reported feeling better. (Tr. 624-25.)
On September 27, 2011, plaintiff reported to Dr. Rauchman that he had
started smoking again. No ankle edema or flank pain was noted, but plaintiff
reported some intermittent hematuria. Dr. Rauchman adjusted plaintiff’s
medications. (Tr. 623-24.)
During a chiropractic visit on September 30, plaintiff reported that his
stretching exercises helped him move more but did not help his pain. Tightness
was noted about the lumbar muscles. Chiropractic adjustments were made, and
plaintiff reported that he felt he was improving. (Tr. 621-23.) On October 7,
plaintiff reported to Dr. Wakefield that he was doing much better with his care and
home exercises. Plaintiff reported his pain to have greatly decreased and that he
could sit for longer periods without pain. Dr. Wakefield noted plaintiff’s range of
motion to improve as well. Hypertonicity continued to be noted about the lumbar
paraspinal musculature. Plaintiff reported being “very excited” in that he felt only
a small amount of tension at the L3-4 level. (Tr. 618-19.) On October 21, plaintiff
reported feeling “great” after his treatments. Low back pain was noted with lateral
flexion of the lumbar spine, but plaintiff otherwise had full range of motion about
the thoracic and lumbar spine. Plaintiff continued to exhibit hypertonic muscles.
Additional adjustments were performed, and plaintiff was instructed as to
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additional home exercises. (Tr. 615-18.)
Plaintiff returned to Dr. Molina-Vicety on October 27, 2011, and reported
that his low back pain was alleviated by chiropractic manipulation but that he
continued to have constant kidney pain because of kidney stones. Plaintiff also
reported his knee pain to have responded well to bracing. Plaintiff reported being
achy in his ankles and knees with associated swelling in the feet after standing for
a long time. Plaintiff reported that he was having problems with water excretion
despite increased fluid intake. Physical examination showed pain upon palpation
of the L5-S1 area with limited range of motion because of stiffness. Otherwise,
examination was unremarkable. Dr. Molina-Vicety prescribed Flexeril for
plaintiff’s chronic pain and instructed plaintiff to continue to lose weight and use
analgesic cream for his back. (Tr. 612-14.)
Plaintiff returned for chiropractic care on November 4, 2011, and reported
feeling much better. Plaintiff reported that he was “ready to be released
whenever.” Chiropractic adjustments were made and plaintiff reported feeling
“great.” Plaintiff was released from chiropractic care with instruction to obtain a
new consult if the pain returned. (Tr. 610-12.)
Plaintiff visited Dr. Gaskin on November 21, 2011, and reported feeling
anxious. Dr. Gaskin increased plaintiff’s dosage of Abilify slightly. Plaintiff
reported that his back was better with the muscle relaxant and that he felt he was
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“on the right mix of meds[.]” Mental status examination was normal. Plaintiff
was continued in the GAF score of 55. (Tr. 605-10.)
On the following day, November 22, plaintiff complained to Dr. Kroupa that
he was having difficulty with the CPAP machine because of nasal congestion.
Physical examination was unremarkable. Plaintiff was instructed to continue with
his medications. (Tr. 603-05.)
A CT scan of the abdomen and pelvis dated December 21, 2011, yielded
unremarkable results. (Tr. 557-58.)
On February 8, 2012, Dr. Molina-Vicety noted plaintiff’s joint pain
condition to be stable with only occasional mild pain in the lower back.
Dr. Molina-Vicety noted plaintiff to be doing well with his current treatment
regimen, which included physical therapy, muscle relaxant, and topical analgesic.
No change was made. (Tr. 602-03.)
During an otolaryngology consult on February 27, 2012, plaintiff reported
that he cannot tolerate the CPAP mask because of nasal congestion and feeling
unable to breathe upon waking. Nasal examination was normal and no obstruction
was noted. (Tr. 594-96.) Plaintiff reported to Dr. Kroupa the following day that he
did not sleep well because of pain and his CPAP machine. Plaintiff reported being
bored and depressed, and Dr. Kroupa discussed with him the cycle of pain/
depression/sleep disturbance. Dr. Kroupa discussed the need to lose weight and to
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stay active. Dr. Kroupa determined to treat plaintiff’s back pain. (Tr. 591-92.)
Plaintiff also visited Dr. Rauchman on February 28 and reported that he was
having some success with smoking cessation. Plaintiff reported no current
remarkable symptoms associated with his kidney disease. Dr. Rauchman
determined to maintain the current treatment regimen. (Tr. 593-94.)
On March 1, 2012, plaintiff visited Dr. Gaskin and reported feeling better.
Plaintiff reported that his mood had been okay and that he felt stable and was not
depressed. Dr. Gaskin noted plaintiff’s mental status examination to be “better
than anytime [he has] seen him.” Plaintiff expressed his belief that they had “the
meds right[.]” Plaintiff’s medication list included a recent prescription for
Tramadol. Plaintiff reported being bored and expressed his desire to move to
Arizona where he had friends. Dr. Gaskin kept plaintiff on his current medication
regimen and assigned a GAF score of 60. (Tr. 584-90.)
Plaintiff underwent a sleep study on March 7, 2012, which showed plaintiff
to have moderate obstructive sleep apnea. Plaintiff was instructed to avoid supine
sleep and to use his CPAP. Plaintiff was also instructed to consider a weight loss
program and an ENT consult. (Tr. 583-84.)
On May 9, 2012, plaintiff reported poor sleep and fatigue to Dr. Kroupa.
Plaintiff reported his pain to be stable but that taking Tramadol twice a day did not
help that much. Plaintiff’s dosage of Tramadol was adjusted. (Tr. 580-81.)
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On June 8, 2012, Dr. Molina-Vicety noted plaintiff to be doing well on his
current treatment regimen and no changes were made. (Tr. 579-80.)
Plaintiff returned to Dr. Gaskin on June 12 and reported that he continued to
be okay. Dr. Gaskin continued plaintiff on his current medications. (Tr. 575-79.)
IV. The ALJ's Decision
The ALJ found that plaintiff last met the insured status requirements of the
Social Security Act on March 31, 2012. The ALJ found plaintiff not to have
engaged in substantial gainful activity from September 17, 2010, through March
31, 2012, the date last insured. The ALJ found that, through March 31, 2012,
plaintiff had the severe impairments of IgA nephropathy, nephrolisthiasis, obesity,
hypertension, and depression, but did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. The ALJ found that, through March 31, 2012,
plaintiff had the RFC to perform medium work, lift fifty pounds occasionally,
twenty-five pounds frequently, stand/walk six hours out of eight, and sit six hours
out of eight. The ALJ further found that plaintiff could understand, remember, and
carry out at least simple instructions and non-detailed tasks. The ALJ determined
that, through March 31, 2012, plaintiff was unable to perform any of his past
relevant work. Considering plaintiff’s age, education, work experience, and RFC
through March 31, 2012, the ALJ determined vocational expert testimony to
- 25 -

support a finding that plaintiff could perform other work as it exists in the national
economy, and specifically, motor vehicle assembler, farm/grain worker, and
trimmer. The ALJ thus found that plaintiff was not under a disability at any time
from September 17, 2010, through March 31, 2012. (Tr. 16-28.)
V. Discussion
To be eligible for DIB under the Social Security Act, plaintiff must prove
that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
The Social Security Act defines disability as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or 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). An individual will be declared disabled "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).
The Commissioner engages in a five-step sequential evaluation process in
determining whether a claimant is disabled. 20 C.F.R. § 404.1520; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). Step 1 considers whether the claimant is
engaged in substantial gainful activity. If so, disability benefits are denied. At
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Step 2, the Commissioner decides whether the claimant has a “severe” medically
determinable impairment or combination of impairments, meaning that which
significantly limits his ability to do basic work activities. If the claimant's
impairment(s) is not severe, then he is not disabled. If the impairment(s) is severe,
the Commissioner then determines at Step 3 whether such impairment(s) is
equivalent to one of the impairments listed in 20 C.F.R., Subpart P, Appendix 1. If
claimant's impairment(s) meets or equals one of the listed impairments, he is
conclusively disabled. Prior to Step 4, the Commissioner must assess the
claimant’s “residual functional capacity” (“RFC”), which is “the most a claimant
can do despite [his or her] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. §§ 404.1520(e),
416.920(e). At Step 4, the Commissioner establishes whether the claimant’s
impairment(s) prevents him from performing his past relevant work. If the
claimant can perform such work, he is not disabled. Finally, if the claimant is
unable to perform his past work, the Commissioner continues to Step 5 and
evaluates various factors to determine whether the claimant is capable of
performing any other work in the economy. The claimant is entitled to disability
benefits only if he is not able to perform other work.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
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Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff'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.
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Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001)
(citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is
substantial evidence on the record as a whole, we must affirm the administrative
decision, even if the record could also have supported an opposite decision.”
Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation marks
and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977
(8th Cir. 2003).
As noted above, plaintiff raises numerous claims arguing that the ALJ’s
decision is not supported by substantial evidence on the record as a whole. The
Court will address each claim in turn.
A.

Credibility Analysis
Before determining a claimant’s RFC, the ALJ must first evaluate the

claimant’s credibility. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Tellez
v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In so doing, the ALJ must consider
- 29 -

all evidence relating to the claimant’s subjective complaints, including the
claimant’s prior work record and third party observations as to the claimant's daily
activities; the duration, frequency and intensity of the symptoms; any precipitating
and aggravating factors; the dosage, effectiveness and side effects of medication;
and any functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) (subsequent history omitted). When rejecting a claimant's subjective
complaints, the ALJ must make an express credibility determination detailing her
reasons for discrediting the testimony. Renstrom v. Astrue, 680 F.3d 1057, 1066
(8th Cir. 2012); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). “It is not
enough that inconsistencies may be said to exist, the ALJ must set forth the
inconsistencies in the evidence presented and discuss the factors set forth in
Polaski when making credibility determinations.” Cline, 939 F.2d at 565; see also
Renstrom, 680 F.3d at 1066; Beckley v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir.
1998). Where an ALJ explicitly considers the Polaski factors but then discredits a
claimant’s complaints for good reason, the decision should be upheld. Hogan v.
Apfel, 239 F.3d 958, 962 (8th Cir. 2001); see also Casey v. Astrue, 503 F.3d 687,
696 (8th Cir. 2007). The determination of a claimant’s credibility is for the
Commissioner, and not the Court, to make. Tellez, 403 F.3d at 957; Pearsall, 274
F.3d at 1218.
Here, the ALJ acknowledged and considered the Polaski factors in
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discounting plaintiff’s subjective complaints of disabling symptoms. See
Halverson v. Astrue, 600 F.3d 922, 931-32 (8th Cir. 2010). In addition to noting
that objective medical evidence did not support plaintiff’s allegations of disabling
symptoms during the relevant period, the ALJ also noted that plaintiff’s medication
record did not support his claim of severe pain or demonstrate that his hypertension
was not controlled. See id. (ALJ’s credibility determination may include
consideration of absence of objective medical evidence to support complaints); see
also Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014) (impairments controllable
by treatment or medication are not considered disabling); Black v. Apfel, 143 F.3d
383, 386-87 (8th Cir. 1998) (conservative course of treatment inconsistent with
complaints of debilitating pain); Richmond v. Shalala, 23 F.3d 1441, 1443-44 (8th
Cir. 1994) (lack of strong pain medication inconsistent with subjective complaints
of disabling pain).
The ALJ also noted that no physician ever found or imposed any long term,
significant physical or mental limitations on plaintiff. See Eichelberger v.
Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (credibility discounted where no
physician imposed any work-related restrictions). To the extent Dr. Molina-Vicety
opined in July 2011 that plaintiff was limited in his ability to sit for long periods of
time, the ALJ properly discounted this opinion inasmuch as it was not supported
by the record as a whole. Indeed, a review of the record in toto shows Dr. Molina- 31 -

Vicety to have acknowledged that plaintiff’s pain was caused by a mild
impairment and was successfully treated with physical therapy, bracing, and
medication. Plaintiff himself determined that continued therapy and bracing was
not necessary given his pain relief. See Turpin, 750 F.3d at 993; Steed v. Astrue,
524 F.3d 872, 875 (8th Cir. 2008) (diagnosis tempered by the words “mild” or
“minimal”). Inconsistency with other evidence alone is a sufficient basis upon
which to discount a treating physician’s opinion. Goff v. Barnhart, 421 F.3d 785,
790-91 (8th Cir. 2005).
In addition, the ALJ noted that plaintiff testified that his back problem
prevented him from being able to continue working as a repossession driver, but
that such testimony was inconsistent with his report to his physician that the job
did not require a lot from his low back. See Ply v. Massanari, 251 F.3d 777, 779
(8th Cir. 2001) (inconsistency in claimant’s statements valid reason to discredit
subjective complaints). The ALJ also noted plaintiff’s report to physicians that he
had normal bowel habits to be inconsistent with claims to other physicians that he
had a fifteen-year history of chronic diarrhea. Regardless, a review of the record
shows plaintiff’s diarrhea condition, whether chronic or more limited in duration,
to have come under control with medication. See Turpin, 750 F.3d at 993.
To the extent plaintiff claims that the ALJ failed to consider his testimony
that his medications caused significant side effects, a review of the record shows
- 32 -

that plaintiff made no complaints to any of his physicians about medication side
effects. This inconsistency supports the ALJ’s adverse credibility determination.
See Depover v. Barnhart, 349 F.3d 563, 566 (8th Cir. 2003); Richmond, 23 F.3d at
1443-44 (plaintiff complained of medication side effects at hearing but medical
record showed no reports of side effects to doctors). In addition, although plaintiff
claims that the ALJ’s credibility analysis failed to sufficiently address his need to
lie down and nap throughout the day, a review of the ALJ’s decision shows her to
have considered plaintiff’s claims of fatigue and exhaustion and found them to be
inconsistent with the medical evidence that showed no evidence of such fatigue
during examinations, including no evidence of loss of strength, cognitive
dysfunction, or somnolence related to overwhelming fatigue. Although not all the
evidence “pointed in that direction,” there was a sufficient amount that did such
that the ALJ’s decision is supported by substantial evidence. See Moad v.
Massanari, 260 F.3d 887, 891 (8th Cir. 2001). Nevertheless, while evidence of
plaintiff’s sleep apnea and reported claims of poor sleep may be consistent with
debilitating symptoms, it cannot be said that the ALJ’s credibility determination is
unsupported in light of the other inconsistencies in the evidence and the objective
medical evidence in the record as a whole. Halverson, 600 F.3d at 933.
Finally, plaintiff claims that the ALJ appeared to discredit his subjective
complaints by improperly relying on his past alcohol use without explaining how
- 33 -

such prior use was relevant to the credibility determination. A review of the ALJ’s
decision, however, shows her to have found plaintiff not to be entirely credible
because of his inconsistent statements regarding his history of alcohol use and not
on account of the alcohol use itself. Indeed, plaintiff’s statement to one provider
denying that he ever drank to excess directly contradicts other statements to
providers that he previously drank heavily and, in fact, up to a fifth of alcohol and
a case of beer daily. Inconsistency in a claimant’s statements is a sufficient factor
to consider in determining credibility. Ply, 251 F.3d at 779.
Accordingly, in a manner consistent with and as required by Polaski, the
ALJ considered plaintiff’s subjective complaints on the basis of the entire record
and set out numerous inconsistencies that detracted from his credibility. Because
the ALJ’s determination not to credit plaintiff’s subjective complaints is supported
by good reasons and substantial evidence, this Court must defer to the ALJ’s
credibility determination. Renstrom, 680 F.3d at 1065; Goff, 421 F.3d at 793;
Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005).
B.

RFC Assessment
Plaintiff claims that the ALJ’s improper evaluation of the evidence resulted

in her failure to include sufficient limitations in the RFC as to sitting, standing,
walking, lying down/napping, and social interaction. For the following reasons,
the ALJ did not err in the manner by which she assessed plaintiff’s RFC.
- 34 -

A claimant’s RFC is what he can do despite his limitations. Dunahoo, 241
F.3d at 1039. 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, 421 F.3d at 793; Eichelberger, 390 F.3d at 591; 20 C.F.R. §
416.945(a). Because a claimant’s RFC is a medical question, some medical
evidence must support the ALJ’s RFC determination. Vossen v. Astrue, 612 F.3d
1011, 1016 (8th Cir. 2010); Eichelberger, 390 F.3d at 591; Hutsell v. Massanari,
259 F.3d 707, 711-12 (8th Cir. 2001). Accordingly, the record must contain
medical evidence sufficient to determine the claimant’s RFC at the time of the
hearing. Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). While the
responsibility for determining RFC rests with the ALJ, the claimant nevertheless
retains the burden to prove his RFC. Eichelberger, 390 F.3d at 591; Baldwin, 349
F.3d 549, 556 (8th Cir. 2003); Pearsall, 274 F.3d at 1217-18. An ALJ’s RFC
assessment must be based on credible evidence of record. McCoy v. Astrue, 648
F.3d 605, 614 (8th Cir. 2011).
Here, the ALJ thoroughly discussed the medical evidence of record,
including the diagnostic and clinical examinations that showed plaintiff’s
impairments and their effect on his ability to function, and specifically, that
plaintiff’s obesity caused some mild degenerative issues that were effectively
- 35 -

managed by various treatment modalities; chronic kidney disease and hypertension
likewise managed by medication; and depression that improved with medication
and did not cause plaintiff to exhibit anything other than essentially normal
behaviors during mental status examinations. In evaluating the medical evidence,
the ALJ accorded significant weight to the treatment records of plaintiff’s treating
physicians, including Dr. Molina-Vicety, and properly discounted Dr. MolinaVicety’s July 2011 opinion for the reasons stated supra at pp. 31-32.
The ALJ also discussed the nonmedical evidence of record. She specifically
noted plaintiff’s past work, the circumstances giving rise to his claimed inability to
work, and his current daily activities. In addition, as discussed at length supra, the
ALJ thoroughly analyzed plaintiff’s subjective complaints and the consistency of
such complaints with other evidence of record.
Upon conclusion of her discussion of specific medical facts, nonmedical
evidence, and the consistency of such evidence when viewed in light of the record
as a whole, the ALJ assessed plaintiff’s RFC based on the relevant, credible
evidence and set out plaintiff’s limitations and their effect on his ability to perform
work-related activities. See Social Security Ruling (SSR) 96-8p, 1996 WL 374184
(Soc. Sec. Admin. July 2, 1996). To the extent plaintiff argues that the ALJ should
have included in the RFC his need to lie down or nap during the day because of
fatigue, back pain, and medication side effects; and his need to be near a bathroom
- 36 -

because of chronic diarrhea, the ALJ properly determined these subjective
limitations as testified by plaintiff not to be fully credible. See discussion, supra at
Sec. V.A. The ALJ therefore did not err in failing to include these limitations in
the RFC assessment. See McCoy, 648 F.3d at 614; Tellez, 403 F.3d at 957.
Nor did the ALJ err by failing to include additional limitations relating to
plaintiff’s level of social interaction. Plaintiff claims that evidence of his
irritability is demonstrated in the record by Dr. Gaskin’s repeated observations of
irritability and depression with mental status examinations, and that “[e]ven the
non-examining reviewer noted evidence of difficulty with social interaction.”
(Pltf.’s Brief, Doc. #13 at p. 9 (citing Tr. 480).) A review of the record in toto,
however, fails to show these limited observations to be of such a degree that
plaintiff’s ability to engage in work-related functions was affected thereby.
Between July 2010 and August 2011, mental status examinations conducted
by Dr. Gaskin repeatedly showed plaintiff to be irritable. Throughout this period,
Dr. Gaskin prescribed psychotropic medications and made adjustments thereto
based on plaintiff’s response, from which plaintiff enjoyed some improvement.
With continued adjustments, plaintiff no longer demonstrated irritability after
August 2011, and mental status examinations thereafter were normal in all
respects. Indeed, plaintiff reported feeling stable and no longer depressed and
attributed his improvement to the right mix of medications. An impairment that is
- 37 -

controllable or amenable to treatment does not support a finding of disability.
Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009).
To the extent plaintiff relies on the State agency non-examining reviewer’s
assessment to support his argument that his RFC is affected by social limitations,
such reliance is misplaced. A reading of the reviewer’s notes referenced by
plaintiff shows her to have merely recited plaintiff’s subjective claims of social
difficulties that he made in his Function Report and to have found these claims to
be inconsistent with the record inasmuch as plaintiff did not report such limiting
circumstances to his treating physicians. (Tr. 480.) In addition, to the extent the
reviewer opined that plaintiff had “mild” limitations in social interaction (see Tr.
478), the undersigned notes that a finding of only mild limitations in the broad
areas of functioning generally leads to a conclusion that the impairment is not
severe. See 20 C.F.R. § 404.1520a(d)(1).4 Nevertheless, the reviewer’s opinion
was rendered in March 2011 and, as noted by the ALJ, was made without the
benefit of subsequent medical evidence, which, as described above, showed
plaintiff’s mental impairment to be controlled with medication such that plaintiff
was stable and exhibited no abnormal behavior, including irritability.
Finally, without specific discussion or argument, plaintiff contends that the
4

As noted earlier, the reviewer opined that plaintiff experienced no or mild limitations in all
broad areas of functioning. (See supra at p. 15.)

- 38 -

ALJ should have included additional limitations in sitting, standing, and walking.
As noted by the ALJ, however, a review of the record shows plaintiff to have
reported to Dr. Molina-Vicety in April 2011 that his back pain was tolerable and
that the onset of his knee pain was recent. After beginning treatment for such pain,
which included medication and referrals to physical therapy and chiropractic care,
plaintiff was reporting by September 2011 that he experienced no pain with
walking and by October 2011 that his pain had been greatly reduced to such an
extent that he could sit for longer periods of time. Dr. Molina-Vicety noted
thereafter that plaintiff was doing well, had only occasional mild pain, and required
no change in his treatment regimen. To the extent plaintiff may claim additional
limitations in sitting, standing, and walking because of fatigue, the ALJ properly
discounted plaintiff’s complaints of debilitating fatigue and a review of the record
shows plaintiff not to have reported to any physician that fatigue limited his ability
to engage in these activities. The ALJ therefore did not err in failing to include
additional limitations in sitting, standing, or walking in her RFC assessment.
Plaintiff presents no other credible evidence demonstrating that he is more
restricted than as determined by the ALJ. An ALJ is not required to list and reject
every possible limitation. McCoy, 648 F.3d at 615.
The ALJ properly established plaintiff’s RFC based upon all the record
evidence in this case, including medical and testimonial evidence. Because the
- 39 -

record contains some medical evidence that supports the RFC and substantial
evidence on the record as a whole supports the determination, the ALJ did not err.
Baldwin, 349 F.3d at 558; Dykes v. Apfel, 223 F.3d 865, 866-67 (8th Cir. 2000)
(per curiam).
C.

Vocational Expert Testimony
To the extent plaintiff claims that the ALJ erred by relying on vocational

expert testimony given in response to a hypothetical question that failed to include
additional limitations as to sitting, standing, walking, lying down, and napping,
such additional limitations were not warranted by the record, as discussed supra.
The ALJ therefore did not err by failing to include these additional limitations in
the hypothetical question posed to the expert.
Plaintiff also claims, however, that the hypothetical question failed to
include limitations as found by the ALJ in her written decision and thus that the
ALJ erred in relying on the expert’s response to this incomplete hypothetical to
find plaintiff not disabled. In her written decision, the ALJ found plaintiff to have
the RFC to “understand, remember and carry out at least simple instructions and
non-detailed tasks.” (Tr. 19.) The hypothetical posed to the vocational expert,
however, included only a limitation to “unskilled” work and did not include the
specific limitations as articulated by the ALJ in her written decision. (Tr. 50.) In
the circumstances of this case, this claimed error was harmless.
- 40 -

As noted by the Commissioner in her Brief, the Social Security
Administration defines “unskilled work” as having the abilities “to understand,
carry out, and remember simple instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting.” SSR 85-15, 1985 WL 56857, at *4 (Soc. Sec. Admin.
1985). The ALJ’s written RFC assessment here limiting plaintiff to understanding,
carrying out, and remembering simple instructions does not impose limitations
more restrictive than “unskilled work” as defined by the Social Security
Administration in this Ruling. To the extent the ALJ’s written RFC assessment
includes an additional limitation to the performance of non-detailed tasks, the
undersigned notes that the vocational expert testified, and the ALJ found, that
plaintiff could perform work as a farm/grain worker as described in the Dictionary
of Occupational Titles (DOT) at number 401.687-010. (Tr. 27, 51.) Such work
involves no detailed tasks but instead requires the ability to apply “commonsense
understanding to carry out simple one- or two-step instructions” and to “[d]eal with
standardized situations with occasional or no variables in or from [] situations
encountered on the job.” DOT 401.687-010, 1991 WL 673292. As such, this
work fits within the definition of unskilled work and complies with the additional
limitation of non-detailed tasks. The vocational expert testified that 790 such jobs
exist in the State of Missouri and 233,280 nationally. (Tr. 51.) Because there is a
- 41 -

significant number of farm/grain worker jobs that plaintiff is capable of performing
with the RFC as determined by the ALJ in her written decision, the ALJ did not err
in finding plaintiff able to perform this other work as it exists in significant
numbers in the national economy. 20 C.F.R. § 404.1566(b) (“Work exists in the
national economy when there is a significant number of jobs (in one or more
occupations) having requirements which you are able to meet[.]”); Weiler v. Apfel,
179 F.3d 1107, 1110-11 (8th Cir. 1999) (vocational expert’s testimony that 32,000
positions existed nationwide in occupation that could be performed by person with
claimant’s vocational factors and RFC constituted substantial evidence that a
significant number of jobs existed in the economy that claimant could perform).
Accordingly, to the extent there existed semantic discrepancies between the
ALJ’s written RFC and the hypothetical question posed to the vocational expert,
such discrepancies resulted in no more than harmless error and do not require
remand inasmuch as they had no effect on the outcome of the case. See
Byes v. Astrue, 687 F.3d 913, 918 (8th Cir. 2012) (case would not have been
decided differently in the absence of ALJ’s claimed error in determining claimant’s
RFC); Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (declining to remand for
alleged error in opinion when error “had no bearing on the outcome”) (internal
quotation marks omitted).

- 42 -

VI. Conclusion
When reviewing an adverse decision by the Commissioner, the Court’s task
is to determine whether the decision is supported by substantial evidence on the
record as a whole. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). “Substantial
evidence is defined to include such relevant evidence as a reasonable mind would
find adequate to support the Commissioner's conclusion.” Id. Where substantial
evidence supports the Commissioner'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. Id.; see also Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011);
Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001).
For the reasons set out above on the claims raised by plaintiff on this appeal,
a reasonable mind can find the evidence of record sufficient to support the ALJ’s
determination that plaintiff was not disabled from September 17, 2010, through
March 31, 2012. Because substantial evidence on the record as a whole supports
the ALJ’s decision, it must be affirmed. Davis, 239 F.3d at 966. This Court may
not reverse the decision merely because substantial evidence exists that may
support a contrary outcome. Therefore,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED, and plaintiff’s Complaint is dismissed with prejudice.
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A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

/s/ Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 5th day of January, 2015.

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