Betts v. Colvin

Filing 24

MEMORANDUM AND ORDER: 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 12/11/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

AARON BETTS,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

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No. 4:14CV225 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 Supplemental Security Income under Title XVI of the Act. Claimant has filed a
Brief in Support of his Complaint; the Commissioner has filed a Brief in Support of her Answer.
The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I.

Procedural History
On January 27, 2011, Claimant Aaron Betts filed Applications for Disability Insurance

Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 107-13)1 and for Supplemental
Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381,
et. seq. (Tr. 114-19). Claimant states that his disability began on February 15, 2009, as a result of
aortic heart dissection. (Tr. 55). On initial consideration, the Social Security Administration
denied Claimant's claims for benefits. (Tr. 56-60). Claimant requested a hearing before an
1

"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(Docket No. 13/filed April 14, 2014).

Administrative Law Judge (“ALJ”). (Tr. 63-67). On June 28, 2012, a hearing was held before
the ALJ who issued an unfavorable decision on November 14, 2012. (Tr. 9-19, 23-46). The
Appeals Council on December 5, 2013 found no basis for changing the ALJ’s decision and denied
Claimant’s request for review of the ALJ’s decision after considering the brief of representative.
(Tr. 1-5, 195-96). The ALJ's determination thus stands as the final decision of the Commissioner.
42 U.S.C. § 405(g).
II.

Evidence Before the ALJ
A. Hearing on June 28, 2012
At the hearing on June 28, 2012, Claimant testified in response to questions posed by the

ALJ and counsel. (Tr. 23-46). At the time of the hearing, Claimant was thirty-four years of age,
and his date of birth is September 11, 1977. (Tr. 26). Claimant testified that he completed high
school. Claimant stands at six feet and weighs 200 pounds. (Tr. 26). He is right-handed. (Tr.
27). He lives with his mother who works outside the home. (Tr. 39).
Claimant testified that he last worked in October 2009 at US Lockbox after almost two
years, and his duties included shipping and receiving and data entry. (Tr. 27). Before that job, he
worked at Neece and Art Craft in customer service. (Tr. 27). For twelve years, Claimant
worked at FedEx as a quality assurance manager, and his duties included customer service,
loading trucks, and making deliveries. (Tr. 28). FedEx terminated him for stealing time off the
clock and showing favoritism towards employees. (Tr. 28).
Claimant has congestive heart failure and dissection of the aorta. (Tr. 29). He testified
that his doctors told him he was working too much lifting weights seven days a week and not
getting any rest causing his aorta to dissect. (Tr. 29-30). He sought medical treatment after
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hurting his ankle and having a bad cough for two to three weeks. (Tr. 30). The doctor at Grace
Hill gave him some antibiotics as treatment but the medication did not work, and his cough
worsened. (Tr. 30). He sought treatment at Barnes Jewish Hospital, and the doctor performed
the aortic dissection and repaired his aneurysm in his head. (Tr. 30-31). Claimant testified that he
has some congenital problem with his blood vessels. (Tr. 31). He has not been hospitalized since
December 2010. (Tr. 32). Dr. Susan Joseph and Dr. Braverman, cardiologists, treat Claimant.
(Tr. 32). He testified that he is treated with medications. (Tr. 33). Claimant has not had any
other treatment for the aneurysm other than the treatment he received while hospitalized at
Barnes. (Tr. 34).
Claimant testified that his condition prevents him from standing on his feet and sit down
for a long period of time. (Tr. 35). He cannot walk long distances without taking a break, and
he uses a cane to assist with walking and maintaining his balance. (Tr. 36, 42). After walking for
fifteen minutes, he is exhausted, and he starts gasping for breath. (Tr. 36). The cane helps his
balance because he experiences dizzy spells. Because of his dizziness spells, Claimant cannot
stand for a long period of time. (Tr. 37). He is uncomfortable sitting because his body becomes
numb. Lying down puts him in a comfortable position. (Tr. 37).
Claimant testified that he has problems with his back and knees, and he needs to elevate
his legs. (Tr. 38). He follows the doctors’ orders by keeping his feet elevated and lying down on
a bed. Claimant testified that he spends more than half of the day lying down only getting up to
use the restroom. (Tr. 38). He has been told not to lift anything heavy. (Tr. 39). His surgeon
told him if he lifts any heavy item, the repair to his aorta could rupture. (Tr. 39). Five to six
times a day he experiences episodes of chest pressure lasting from one to two hours. (Tr. 42).
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Lying down makes him feel better. (Tr. 43).
Since the surgery, Claimant feels his symptoms are becoming worse. (Tr. 43). His
surgery has not helped with his breathing and walking. (Tr. 43). He takes naps at least twice a
day for three to four hours. (Tr. 44). The last time he had the treadmill test was when he had the
surgery. (Tr. 44). Claimant testified to prevent another aneurysm or overload his heart, he
cannot be in extremely hot or cold weather; he cannot lift anything heavy; and he has to avoid
anything stressful. (Tr. 45).
2. Forms Completed by Claimant
In the Disability Report - Adult, Claimant reported he stopped working on February 15,
2009 “[b]ecause of my condition(s) and other reasons” noting that the department in which he
worked closed down.” (Tr. 173-79).
In the Function Report - Adult completed on March 25, 2011, Claimant
reported his daily activities include reading books, watching television, making his bed, doing the
laundry, polishing and wiping down things as needed. (Tr. 150, 152). He listed playing pool,
throwing darts, bowling, and playing any video games as his hobbies. (Tr. 154). Claimant spends
time with others playing cards. (Tr. 154). He goes to the doctor’s office three to four times a
month. (Tr. 154). The use of a cane for long periods of standing and walking was prescribed
when he was discharged from the hospital. (Tr. 156).
III.

Medical Records and Other Records
To obtain disability insurance benefits, Claimant must establish that he was disabled within

the meaning of the Social Security Act not later than the date his insured status expired December 31, 2014. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) (“In order to receive
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disability insurance benefits, an applicant must establish that she was disabled before the
expiration of her insured status.”); see also 42 U.S.C. §§ 416(I) and 423(c); 20 C.F.R. § 404.131.
On December 14, 2010, Claimant presented in the emergency room seeking treatment for
cough of two months after being diagnosed with pneumonia at Urgent Care one week earlier.
(Tr. 244, 256). He was given a Z-Pak as treatment, and he experienced some relief but his
symptoms returned after he finished the antibiotic. (Tr. 256). He reported having shortness of
breath and chest pain, and his heart beating faster. (Tr. 245, 257). Examination showed his heart
rate greater than 110. (Tr. 245). He reported productive cough, body aches and tachypnea with
exertion since May. (Tr. 246). Claimant reported being an unemployed warehouse office staff.
(Tr. 257). In the progress note, a doctor noted how cardiac surgery was aware of large aortic
dissection. (Tr. 261). Dr. Heiken noted in the Impression, patchy consolidation in the right lower
lung, most consistent with pneumonia and mild to moderate cardiomegaly. (Tr. 274). Dr.
Douglas Char made the diagnosis of acute dissection - thoracic. (Tr. 293). It is noted how no
primary care physician would be contacted because he had no primary care doctor of record. (Tr.
294).
On December 15, 2010, Dr. Marc Moon performed aortic root replacement surgery and
replaced the emergent ascending aortic with a Hemashield graft and placed a intra-aortic balloon
pump. (Tr. 238). Claimant presented in the emergency room the night before, and he was taken
to the operating room for emergent repair, and Dr. Moon then found he had very severe aortic
regurgitation, dilated left ventricle, and elevated BNP. Dr. Moon did an aorta to innominate
bypass due to near-occlusion of his innominate artery and noted the procedure gave excellent flow
into his right carotid and subclavian. (Tr. 238). Dr. Moon noted Claimant to have a chronic
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dissection of unknown duration. (Tr. 239).
The December 15, 2010 Chest Computed Tomography showed a large ascending aortic
aneurysm and a Type A aortic dissection originating at the aortic root and extends through the
ascending aorta and aortic arch up to the level of the left subclavian artery. (Tr. 22-30).
The Transthoracic Echocardiography with Color Doppler revealed status post aortic root
repair after aortic dissection, paradoxical septal motion, and overall LV systolic function severely
decreased. (Tr. 223-24).
In the December 27, 2010 Discharge Note, Dr. Moon noted his principal diagnosis to be
aortic dissection repair and directed Claimant to schedule an appointment with his cardiologist in
four weeks. (Tr. 225). In the Activity Guidelines for Cardiac Surgery, Claimant was limited
pushing, pulling, or lifting anything heavier than ten pounds for four to six weeks. (Tr. 226).
The January 13, 2011 x-ray showed the bibasilar opacity seen on the prior study of
December 25, 2010 have improved with minimal residual atelectasis remaining, no pleural
effusion, and mild cardiomegaly unchanged. (Tr. 220, 305).
On February 16, 2011, Dr. Susan Joseph treated Claimant’s congestive heart failure and
aortic regurgitation. (Tr. 349). Claimant reported that he is awaiting his Medicaid insurance to
be approved before going to cardiac rehab, but he has been trying to do simple things like walking
around the house and in the neighborhood in order to rehab. He reported some residual right
groin discomfort that has required him to use a cane. At his evaluation, Dr. Moon found that this
would probably get better in the next one to two months. Prior to his admission in December
2010, Claimant was exercising six times a week, mostly weightlifting and light jogging. (Tr. 349).
Dr. Joseph prescribed a medication regimen as treatment. In response to his query regarding any
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limitations of exercise, Dr. Joseph told him he should not do any isometric exercise, but he should
continue to do cardiovascular workouts as he has been with walking and progressively increasing
the amount of time that he walks for as he can tolerate. (Tr. 350)
In follow-up treatment on March 9, 2011, Claimant reported doing well with no
symptoms of shortness of breath, dizziness, or swelling. (Tr. 345). Examination showed no
edema. (Tr. 345). Dr. Joseph continued his medication regimen as treatment. (Tr. 346).
On April 6, 2011, Dr. Alan Braverman completed a consultation regarding aortic
dissection on referral by Dr. Joseph. (Tr. 341). Dr. Braverman noted how Claimant was found to
have a chronic type-A dissection and markedly dilated aortic root, and severe aortic regurgitation
as well as congestive heart failure in December 2010. (Tr. 341). He reported a history of intense
weight training lifting up to 300 to 350 pounds by bench press over the last two years. (Tr. 342).
Claimant denied any orthopnea, syncope, and palpitations and basically feeling generally well.
Examination showed no peripheral edema present. (Tr. 342). Dr. Braverman found Claimant to
be doing remarkably well, and his recovery to be quite incredible. (Tr. 343). Dr. Braverman
noted Claimant does not have any signs or symptoms of heart failure. With regard to the etiology
to the aortic dissection, Dr. Braverman opined that he may have some underlying genetic trigger
and recommended against any weight lifting but he could lift ten pounds at a time with repetitions.
Dr. Braverman noted that Claimant is on a good medical regimen for heart failure which is also
controlling his blood pressure adequately. (Tr. 343).
On May 18, 2011, Claimant reported doing much better since his last visit with improved
exertional capacity. (Tr. 338). He occasionally experiences chest pain lasting for fifteen to
twenty seconds after rest or long periods of exertion. Dr. Joseph noted how he did not have any
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shortness of breath, edema, dizziness, or significant lower extremity edema. (Tr. 338). Dr.
Joseph opined that the likely etiology of his aortic dissection was intense weightlifting, and his
family history has some congestive heart failure but no significant aortic problems. (Tr. 339).
Claimant noted how he is looking for a primary care physician. Examination showed no edema.
His last chest CT from April 21 showed an ascending aortic graft replacement with previous type
A dissection and a persistent root aneurysm. Dr. Joseph listed congestive heart failure in her
impression and noted Claimant to be doing well from a heart failure standpoint and prescribed
medications as treatment. Dr. Joseph treated his aortic disease by continuing to control his blood
pressure aggressively and placing a limitation of lifting no more than ten pounds at most and
recommended cardiac rehab to determine what exercise capacity he can tolerate. (Tr. 339).
At the request of counsel, Dr. Joseph completed a Cardiac Residual Functional Capacity
Questionnaire on June 28, 2011. (Tr. 306). Counsel noted that he was not asking Dr. Joseph to
evaluate Claimant, but he wanted her to “use the information you already have in your file to
complete the attached form so that the judge may better understand the diagnosis, prognoses and
physical and mental limitations.” (Tr. 306). Dr. Joseph listed one date, February 16, 2011, as the
nature, frequency and length of contact. (Tr. 308). In response to the diagnosis with New York
Heart Association functional classification, Dr. Joseph listed Class II. As to clinical findings, Dr.
Joseph noted “congestive heart failure with an EF of 15-20% with history of chronic aortic
dissection with an aortic root replacement in Dec. 2010.” (Tr. 308). Dr. Joseph noted his anginal
pain to last fifteen to twenty seconds intermittent with rest at times and with activity at times.
(Tr. 309). She found he was incapable of performing low stress jobs because he has congestive
heart failure. (Tr. 309). She found Claimant should avoid concentrated exposure to wetness and
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noise and avoid all exposure to extreme heat and cold, humidity, fumes, and hazards. (Tr. 311).
Dr. Joseph noted he would on average miss more than four days of work each month. (Tr. 312).
Dr. Joseph found Claimant could sit one to two hours before needing to get up and stand one
hour before needing to sit down. (Tr. 313). He would need to take unscheduled breaks as
needed, and elevate his legs as needed. (Tr. 313). In her last limitation, Dr. Joseph listed not
lifting over ten pounds. (Tr. 314).
On June 29, 2011, Claimant reported doing quite well and having no concerning cardiac
symptoms. (Tr. 333). He has been doing some walking on a treadmill. The ECHO done that day
showed LVEF 60%. Dr. Joseph found his EF improved to about 60% and did not change his
medication regimen. (Tr. 333).
In follow-up treatment on October 5, 2011, Claimant presented for treatment of aortic
dissection. (Tr. 330). Dr. Braverman noted that Claimant’s heart failure has basically resolved.
Claimant reported occasional dizziness and lightheadedness. (Tr. 330). Dr. Braverman found him
to be clinically much improved and not having any symptoms of heart failure. (Tr. 331).
Dr. Joseph treated Claimant on December 28, 2011 after he was diagnosed with
congestive heart failure at the time of aortic dissection. (Tr. 317). Dr. Joseph noted EF initially
severely reduced and recently recovered LV systolic function, ejection fracture of 52%. She
found from a heart failure standpoint, his symptoms are unchanged. He complained of exertional
shortness of breath with walking three blocks, fatigue, and occasional leg swelling. The most
recent echocardiogram in October 2011 showed LV fraction of 52%, mild inferior hypokinesis,
mild aortic and tricuspid insufficiency. (Tr. 317). Dr. Joseph found his LV function to be
recovered back to normal on anti-remodeling therapy, but he still continues to have Class II
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congestive heart failure symptoms. (Tr. 318). She continued his medication regimen noting how
he had improved remarkably on it and referred him for cardiac rehabilitation. "From a heart
standpoint we are very pleased with his progress and will continue to see him on an as-needed
basis." (Tr. 318).
In follow-up treatment on April 17, 2012, Claimant reported continued episodes of mild
lightheadedness and dizziness with episodes of heart racing lasting up to two hours. (Tr. 355).
Dr. Braverman noted Claimant has a history of cardiomyopathy and aortic regurgiation in the
past, and his LV function had improved over time. (Tr. 356). Dr. Braverman found he does not
have any signs of increased volume. Dr. Braverman found Claimant to be stable from a heartfailure standpoint. (Tr. 356). Dr. Braverman encouraged him to do daily weights. (Tr. 357).
Claimant reported increased strain in his chest attributed to lifting his father three weeks earlier.
(Tr. 357).
The May 2, 2012 CT of his chest showed stable post surgical changes from ascending
aortic dissection with aortic root graft repair and aortic right brachiocephalic bypass, and dilated
aortic root to be stable. (Tr. 353).
On August 13, 2012, Dr. A. Rashid Qureshi performed a cardiac consultative examination
on referral by disability determinations. (Tr. 381). Claimant complained of marked shortness of
breath on mild to moderate exertion and only being able to walk half a block and needs to use a
cane. (Tr. 382). Dr. Qurshi found Claimant to be extremely depressed and unable to work. He
claimed that he cannot lift more than ten pounds, can sit and stand for thirty minutes and unable to
handle or finger. (Tr. 382). Dr. Qureshi found could never lift ten pounds, carry ten pounds, sit
for thirty minutes total in an eight hour workday, stand for thirty minutes in an eight hour
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workday, and walk for ten minutes in an eight hour workday. (Tr. 374-75). Dr. Qureshi found
Claimant needed a cane to ambulate. (Tr. 375).
IV.

The ALJ's Decision
The ALJ found that Claimant meets the insured status requirements of the Social Security

Act through December 31, 2014. (Tr. 14). Claimant has not engaged in substantial gainful
activity since February 15, 2009, the amended alleged onset date. The ALJ found that the
medical evidence establishes that Claimant has the severe impairments of aortic dissection, but no
impairment or combination of impairments listed in, or medically equal to one listed in Appendix
1, Subpart P, Regulations No. 4. (Tr. 14-15). The ALJ found that Claimant has the residual
functional capacity to perform the full range of sedentary work. (Tr. 15). He is unable to
perform any past relevant work. (Tr. 18). Claimant is a younger individual with at least a high
school education and is able to communicate in English. (Tr. 18). Considering Claimant’s age,
education, work experience, and residual functional capacity, the ALJ found there are jobs that
exist in significant numbers in the national economy that Claimant can perform. (Tr. 19). The
ALJ concluded that Claimant has not been under a disability from February 15, 2009, through the
date of the decision. (Tr. 19).
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
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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
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,
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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
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
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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.”
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 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 evaluate the opinion of his treating

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physician.
The undersigned finds that the ALJ considered Dr. Joseph’s opinion and gave slight
weight to her opinion in his written opinion as follows:
The claimant’s treating physician, Susan Joseph, M.D., submitted a
function report on June 28, 2011. Dr. Joseph opined that the claimant was
incapable of unskilled sedentary work. Dr. Joseph opined that the claimant would
likely miss more than four days of work per month due to symptoms. The
undersigned gives this opinion some weight. Dr. Joseph submitted this report six
months after the claimant’s surgery. The undersigned concurs that this assessment
is accurate through the date Dr. Joseph rendered the opinion. However, the
undersigned finds that after the date of this opinion, the claimant’s condition
improved. The record shows that a month before this the date of this opinion, the
claimant reported no symptoms of shortness of breath, lightheadedness, or
dizziness. By October, his ejection function was 52 percent. By October 2011, his
condition had significantly improved. A year after his surgery, the claimant was
doing remarkably well on medication and his symptoms were no more than mild.
Based on the above, the undersigned gives this opinion some weight.
(Tr. 17) (internal citations omitted).
"A treating physician's opinion is given controlling weight if it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [a claimant's] case record.'" Tilley v. Astrue, 580 F.3d 675, 679 (8th
Cir. 2009) (quoting 20 C.F.R. §404.1527(d)(2) (alteration in original). "[W]hile a treating
physician's opinion is generally entitled to substantial weight, such an opinion does not
automatically control because the [ALJ] must evaluate the record as a whole." Wagner v. Astrue,
499 F.3d 842, 849 (8th Cir. 2007) (internal quotations omitted). Thus, "‘an ALJ may grant less
weight to a treating physician's opinion when that opinion conflicts with other substantial medical
evidence contained within the record.'" Id. (quoting Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th
Cir. 2000)).

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A treating physician's opinion may be, but is not automatically, entitled to controlling
weight. 20 C.F.R. § 404.1527(d)(2). Controlling weight may not be given unless the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic techniques. SSR 96-2P,
1996 WL 374188 (July 2, 1996). Even a well-supported medical opinion will not be given
controlling weight if it is inconsistent with other substantial evidence in the record. Id. "The
record must be evaluated as a whole to determine whether the treating physician's opinion should
control." Tilley, 580 F.3d at 679. When a treating physician's opinions "are inconsistent or
contrary to the medical evidence as a whole, they are entitled to less weight." Halverson v.
Astrue, 600 F.3d 922, 930 (8th Cir. 2010( (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1023
(8th Cir. 2002)). "A treating physician's opinion does not automatically control, since the record
must be evaluated as a whole." Perkins v. Astrue, 2011 WL 3477199, *2 (8th Cir. 2011)
(quoting Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir. 2009)). The ALJ is charged with the
responsibility of resolving conflicts among the medical opinions. Finch v. Astrue, 547 F.3d 933,
936 (8th Cir. 2008).
Additionally, Social Security Ruling 96-2p states in its "Explanation of Terms" that it "is
an error to give an opinion controlling weight simply because it is the opinion of a treating source
if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or
if it is inconsistent with other substantial evidence in the case record." 1996 WL 374188, at *2
(S.S.A. July 2, 1996). SSR 96-2 clarifies that 20 C.F.R. §§ 404.1527 and 416.927 require the
ALJ to provide "good reasons in the notice of the determination or decision for the weight given
to a treating source's medical opinion(s)." Id. at *5.
Claimant will not qualify for benefits under the Act unless his impairments were “of such
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severity that he [was] not only unable to do his previous work but [could not], 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). Thus, if Claimant could perform
sedentary work, he is not entitled to disability insurance benefits. The applicable regulations
define sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are
met.
20 C.F.R. § 416.967(a).
Although a treating physician’s opinion is often given “controlling weight,” such deference
is not appropriate when the opinion is “inconsistent with other substantial evidence.” Renstrom v.
Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting Perkins v. Astrue, 648 F.3d 892, 897 (8th
Cir. 2011)). The record as a whole in this case, including the inconsistencies in Dr. Joseph’s
treatment notes and her function questionnaire and the effectiveness of his medication, casts doubt
on her assertions that Claimant could not perform sedentary work.
First, to the extent Dr. Joseph opined that Claimant is disabled and incapable of
performing low stress jobs, a treating physician’s opinion that a claimant is not able to work
“involves an issue reserved for the Commissioner and therefore is not the type of ‘medical
opinion’ to which the Commissioner gives controlling weight.” Ellis v. Barnhart, 392 F.3d 988,
994 (8th Cir. 2005); House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (A physician’s opinion
that a claimant is “disabled” or “unable to work” does not carry “any special significance,”

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because it invades the province of the Commissioner to make the ultimate determination of
disability). The ALJ acknowledged that Dr. Joseph was a treating source, but that her opinion
was not entitled to controlling weight because it is inconsistent with the objective medical
evidence in the record after the date of the function questionnaire. See Travis v. Astrue, 477 F.3d
1037, 1041 (8th Cir. 2007) (“If the doctor’s opinion is inconsistent with or contrary to the
medical evidence as a whole, the ALJ can accord it less weight.”). The undersigned notes that
Dr. Joseph’s opinion is inconsistent with her own treatment notes inasmuch as she never found
such functional limitations during treatment.
Dr. Joseph treated Claimant a month before completing the cardiac function questionnaire,
but he did not report the conditions and symptoms that he claims render him totally disabled.
Indeed, he reported doing much better since his last visit with improved exertional capacity. Dr.
Joseph noted how he did not have any shortness of breath, edema, dizziness, or significant lower
extremity edema and found Claimant to be doing well from a heart failure standpoint and
prescribed medications as treatment and recommended cardiac rehab to determine what exercise
capacity he can tolerate. As to clinical findings in the function report, Dr. Joseph noted
“congestive heart failure with an EF of 15-20% with history of chronic aortic dissection with an
aortic root replacement in Dec. 2010.” In the June 29, 2011 treatment note, Claimant reported
doing quite well and having no concerning cardiac symptoms and doing some walking on a
treadmill. Dr. Joseph found his EF improved to about 60% and continued his medication
regimen. His medical records likewise reflect no complaints of any disabling problems associated
with sitting, standing, or walking; instead one doctor encouraged him to lift weights and another
made a referral to cardiac rehabilitation.
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The ALJ acknowledged that Dr. Joseph was a treating source, but that her opinions were
not entitled to controlling weight, because they were inconsistent with the objective medical
records after the date of questionnaire. As noted by the ALJ, Dr. Joseph completed the cardiac
function questionnaire six months after his surgery thus the opinions therein would be accurate
through the date of the questionnaire. The undersigned notes no examination notes accompanied
the June 28, 2011 cardiac function questionnaire. Opinions of treating doctors are not conclusive
in determining disability status and must be supported by medically acceptable clinical or
diagnostic data. Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995); 20 C.F.R. §
404.1527(d)(3) (providing that more weight will be given to an opinion when a medical source
presents relevant evidence, such as medical signs, in support of his or her opinion).
Second, Dr. Joseph’s opinions are inconsistent with her clinical treatment notes. Davidson
v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009). “It is permissible for an ALJ to discount an opinion
of a treating physician that is inconsistent with the physician’s clinical treatment notes,” id., or
when it consists of conclusory statements, Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010).
See also Clevenger v. S.S.A., 567 F.3d 971, 975 (8th Cir. 2009) (affirming ALJ's decision not to
follow opinion of treating physician that was not corroborated by treatment notes); Chamberlain
v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) ("The weight given a treating physician's opinion is
limited if the opinion consists only of conclusory statements."). Dr. Joseph's opinions are not
supported by her treatment notes and are conclusory. See McCoy v. Astrue, 648 F.3d 605, 617
(8th Cir. 2011) (rejecting claimant's challenge to lack of weight given treating physician's
evaluation of claimant's mental impairments when "evaluation appeared to be based, at least in
part, on [claimant's] self-reported symptoms, and, thus, insofar as those reported symptoms were
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found to be less than credible, [the treating physician's] report was rendered less credible."). An
ALJ may “discount or even disregard the opinion of a treating physician ... where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.” Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000); Hackler v. Barnhart, 459 F.3d 934, 937 (8th Cir.
2006) (holding that where a treating physician’s notes are inconsistent with his or her RFC
assessment, controlling weight is not given to the RFC assessment). The ALJ properly accorded
Dr. Joseph’s opinions in the questionnaire little weight inasmuch as her findings were inconsistent
with, and unsupported by, the evidence of record. See Travis v. Astrue, 477 F.3d 1037, 1041
(8th Cir. 2007) (“If the doctor’s opinion is inconsistent with or contrary to the medical evidence
as a whole, the ALJ can accord it less weight.”) (citation and internal quotation omitted). A
review of her treatment notes shows she never imposed any functional limitations or any work
restrictions on Claimant. See Fischer v. Barnhart, 56 F. App’x 746, 748 (8th Cir. 2003) (“in
discounting [the treating physician’s] opinion, the ALJ properly noted that ... [the treating
physician] had never recommended any work restrictions for [the claimant]”). Dr. Joseph’s
treatment notes do not reflect the degree of limitation she noted in her June 28, 2011 cardiac
function questionnaire. The relevant lack of supporting evidence includes the absence of any
restrictions placed on Claimant by Dr. Joseph during her treatment of him. See Teague v. Astrue,
638 F.3d 611, 615 (8th Cir. 2011). The undersigned concludes that the ALJ did not err in
affording little weight to Dr. Joseph’s opinions of June 28, 2011.
Furthermore, treatment has controlled Claimant’s impairments: in follow-up treatment of
aortic dissection on October 5, 2011, Dr. Braverman found him not having any symptoms of heart
failure and his heart failure to be basically resolved and clinically much improved. On December
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28, 2011, Dr Joseph continued his medication regimen noting how he had improved remarkably
on it and referred him for cardiac rehabilitation. In particular, Dr. Joseph opined "[f]rom a heart
standpoint we are very pleased with his progress and will continue to see him on an as-needed
basis." On April 12, 2012, Dr. Braverman found Claimant to be stable from a heart-failure
standpoint and encouraged him to do daily weights. Estes v. Barnhart, 275 F.3d 722, 725 (8th
Cir. 2002) (“An impairment which can be controlled by treatment or medication is not considered
disabling.”).
Further, no examining physician in any treatment notes stated that Claimant was disabled
or unable to work or imposed mental 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, 680 F.3d at 1065; 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). Thus, the
ALJ did not err in giving slight weight to her findings. Renstrom, 680 F.3d at 1065 (ALJ
properly gave treating physician's opinion non-controlling weight when that opinion was largely
based on claimant's subjective complaints and was inconsistent with other medical experts). As
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such, the undersigned finds that the ALJ gave proper weight to Dr. Joseph's opinion.

Likewise, the opinions of consultative examiner Dr. Rashid Qureshi were inconsistent with
the objective medical evidence of record. Thus, his opinions were not entitled to significant
weight for the same reasons that Dr. Joseph’s opinions were not afforded controlling weight: his
opinions did not account for Claimant’s improvement with surgery and medication and
inconsistent with the record as a whole. Further, his work-related limitations were primarily
based on Claimant’s subjective reports as he notes “patient claimed he cannot lift more than 10
pounds at a time and can only sit and stand for 30 minutes and walk for 10 minutes in a total eight
hour day....”. See Teague, 638 F.3d at 616 (holding that a physician’s medical source statement
may be discounted when, inter alia, it is based on claimant’s subjective complaints).
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.
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
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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.
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.

Dated this 11 day of December, 2014.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

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