Gleghorn v. Colvin

Filing 18

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accordance with this Memorandum and Order will be entered this same date.. Signed by District Judge Carol E. Jackson on 3/13/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GILBERT T. GLEGHORN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Case No. 4:14-CV-426-CEJ

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I.

Procedural History

On March 11, 2008, plaintiff Gilbert T. Gleghorn filed an application for
supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged
onset date of December 3, 2007.

(Tr. 287–89)

After plaintiff’s application was

denied on initial consideration (Tr. 152–57), he requested a hearing from an
Administrative Law Judge (ALJ). (Tr. 159–61) Plaintiff and counsel appeared for a
hearing on January 6, 2010.

(Tr. 36–78)

plaintiff’s application on March 26, 2010.

The ALJ issued a decision denying
(Tr. 129–44)

Plaintiff requested the

Appeals Council reverse the ALJ’s decision and remand for a new hearing (Tr. 203),
which request was granted on December 12, 2011. (Tr. 145–49) Plaintiff also filed
a subsequent claim for Title XVI benefits on March 22, 2011, which was
consolidated with his prior claim. (Tr. 10) The ALJ held a second hearing on May
10, 2012, at which plaintiff and counsel again appeared. (Tr. 79–125) On October
12, 2012, the ALJ issued a second decision denying plaintiff’s application. (Tr. 7–

27) The Appeals Council denied plaintiff’s request for review on January 6, 2014.
(Tr. 1–3) Accordingly, the ALJ’s second decision stands as the Commissioner’s final
decision.
II.

Evidence Before the ALJ

A. Disability Application Documents
In his Disability Report (Tr. 394–401), plaintiff listed his disabling conditions
as arthritis in his left foot and flat feet. (Tr. 395) He has difficulty standing for long
periods and carrying weighted items. Id. He takes over-the-counter Advil, Aspirin,
Ibuprofen, and Tylenol for pain. (Tr. 399) Plaintiff stated that he attended special
education classes through the equivalent of the tenth grade, but the Missouri
Special School District has no record of plaintiff’s attendance. (Tr. 400, 464) In
the report, plaintiff states that he can read and understand English and that he can
write more than his name in English. (Tr. 394)
In a Missouri Supplemental Questionnaire completed on March 15, 2008 (Tr.
370–77), plaintiff complained of additional arthritis pain in his left hip, and that one
of his legs is larger than the other. He also reported difficulty following written and
verbal instructions, and that he cannot read or write.

Plaintiff reported taking

prescription Tramadol1 as needed and using a self-prescribed cane every day.
Conflictingly, plaintiff stated both that he does not shop and that he goes shopping
once a week. (Tr. 373, 375) Plaintiff reported doing “nothing” throughout the day,
suffering constant pain. (Tr. 374) He alleged that sitting for a long period causes
pain, but that he can watch a thirty minute television show. Id.

1

Error! Main Document Only.Tramadol is prescribed for treatment of moderate to moderately
severe pain. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695011.html (last visited Jan. 23,
2015).

2

On March 21, 2008, plaintiff completed a second Missouri Supplemental
Questionnaire.

(Tr.

378–85)

He

reported

sometimes

understanding what people are saying to him. (Tr. 384)

having

difficulty

His arthritis symptoms

are exacerbated by walking, standing, and lying or sitting on his left side for too
long.

(Tr. 378)

His inability to lie on his left side without pain makes sleeping

difficult. (Tr. 382) Plaintiff reported that his daily dose of Tramadol, coupled with
over-the-counter Advil and Tylenol, caused sleepiness and drowsiness.

(Tr. 379)

Inconsistently, plaintiff stated that he does not ever go shopping (Tr. 381) and that
he drives to the “store and back,” “when needed.” (Tr. 383) He reported doing no
household chores (Tr. 381), and yet he said that sometimes he must be reminded
to complete chores. (Tr. 384) He spends most of his day “taking something for
pain every three or four hours.”
shifting from side to side.

Id.

(Tr. 382)

He is unable to sit for long without

In contrast to the questionnaire he completed a

week earlier, plaintiff reported that his pain is so severe that he cannot even watch
a 30-minute television show. Id.
On March 23, 2008, plaintiff completed a Work History Report in which he
detailed past jobs as a cook, a dishwasher, a mover, and a landscaper. (Tr. 386)
He could not remember when he had worked at any of those jobs, but he recalled
that he last worked on January 1, 1993. (Tr. 386, 395) He reported that some of
his prior work included the use of machines, tools, and equipment; and technical
knowledge and skills. (Tr. 387, 389, 391)
In a Function Report filed on July 3, 2009, plaintiff stated that he spends his
days sitting or lying down and watching television. (Tr. 433) His sleep is disrupted
because he must hang his left foot off the bed “for blood flo[w].” (Tr. 434)

3

He

leaves his house about every other day, at which times he drives his car,
sometimes rides in a car driven by others, or uses public transit. (Tr. 436) In the
Function Report, he claimed that he never goes shopping. Id. He reported that his
alleged conditions do not affect his ability to follow verbal instructions, use his
hands, see, hear, talk, or get along with others. (Tr. 431) In the Function Report,
plaintiff stated that he ambulates with a cane only “some times.” (Tr. 432)
B. Testimony at the First Hearing
Plaintiff was 49 years old at the time of the first hearing before the ALJ. (Tr.
41) He testified that he has limited reading and writing skills. (Tr. 43, 70) He had
been incarcerated several times for crimes he could not always detail, most recently
for two years for possession of a controlled substance. (Tr. 46–47)
Plaintiff recalled that he has not worked in over twenty years. (Tr. 51) The
ALJ noted, however, that medical records from 2003 captured plaintiff’s statement
that he “had his own lawn service.” (Tr. 52)

Plaintiff did not explain that

discrepancy. (Tr. 53) He claimed that he does not do any household chores, but
admitted to going shopping with his wife.

(Tr. 66)

He also testified that he

sometimes visits his cousin and his daughters in their homes. (Tr. 67)
Other than his left leg and hip, plaintiff testified that he has no problems with
his arms, hands, or any other body part that would interfere with his ability to
work. (Tr. 70) In his estimation, he can walk for just three to five minutes at a
time. (Tr. 67) He also estimated that he could only stand for five minutes at a
time, and that he could sit for ten or twenty minutes, during which time he would
have to shift from side to side.

(Tr. 67–68)

In response to questions from his

counsel, plaintiff testified that he elevates his left leg at night with a pillow and that

4

he sleeps for four hours a night, tossing and turning throughout. (Tr. 68–69) He
does not lie on his left side when in bed because of his left foot and left hip
condition.

(Tr. 69)

Because his left foot “swells up,” plaintiff elevates it

“throughout the day[,] three or four times a day.” (Tr. 68) Plaintiff testified that,
he would have typically “been up 20 times” and have elevated his foot in the
amount of time the hearing lasted. (Tr. 70)

The ALJ told plaintiff that he could

change his body position or stand up, but plaintiff did not do so. (Tr. 39)
Despite plaintiff’s claim that he uses a cane every day to ambulate, the ALJ
took note that plaintiff did not appear at the hearing with a cane. (Tr. 54) The ALJ
also observed that plaintiff was not limping when he walked into the hearing. (Tr.
57)

Plaintiff then admitted that he uses a cane only “every now and then,” or

about once a week, when his foot swells up. (Tr. 54, 58, 68) The ALJ also noted
that plaintiff was observed at one point using a cane on “the wrong side for an
injury to [his] left foot.” (Tr. 58)
At the time of the first hearing, plaintiff had not been prescribed any
medication for his arthritis; instead, he took only over-the-counter Advil and
Tylenol.

(Tr. 55, 58, 62)

He recalled that his podiatrist had once prescribed

unspecified pain medication, but it did not alleviate his symptoms. (Tr. 62) He also
reported receiving indeterminate treatment for his breathing. Id. He was “on the
borderline for diabetes,” but his physician did not prescribe any medication for this
condition. Id.
Plaintiff completed a mandatory drug rehabilitation program upon his release
from prison in 2005, and he maintains that he has not used any drugs since he was
released. (Tr. 61–63) When questioned by the ALJ about his putative substance

5

dependency disorder, however, plaintiff admitted that he drinks alcohol with such
regularity and in such quantities that his drinking is an “actual disorder,” and that
he abuses alcohol.

(Tr. 55)

Plaintiff testified that he drinks alcohol “when [he]

get[s] his hands on it,” and that he will drink as much alcohol as he has available.
(Tr. 56)
C. Testimony at the Second Hearing
Following the Appeals Council’s remand order, the ALJ conducted a second
hearing on May 10, 2012, which plaintiff and counsel attended.

(Tr. 79–125)

Plaintiff weighed 250 pounds and he was 5’ 5” tall. (Tr. 89) He testified that it is
difficult for him to write, such that he would be unable to write out a sentence
without assistance. (Tr. 86) Plaintiff also reported that his memory is “very shot,”
and that he has trouble remembering things “all the time.” (Tr. 89–90)
In addition to arthritis pain, plaintiff complained of migraines, which he gets
“maybe once [or] twice a month.” (Tr. 87–88, 90) He estimated that he can stand
in one place for about twenty to thirty minutes. (Tr. 87) He reported being unable
to sit in one position for very long, but said that he can stretch his left leg and foot
out to “let [his] blood circulate.” Id. He estimated that he can only walk one-half
of a block before needing to rest. (Tr. 90)
Plaintiff testified that he spends most of the day “[j]ust sitting with [his] leg
propped up, watching TV.” (Tr. 88) He reported propping his left leg up for four to
five hours every day because it “helps [his] blood circulate better.” Id. Contrary to
his statement at the first hearing that he uses a cane infrequently, plaintiff testified
that he walks with a cane to take pressure off his left foot “basically every day” for
“maybe 10 [to] 15 minutes” per day. (Tr. 89)

6

Plaintiff reported taking over-the-counter medications, including Advil, Bayer,
and Tylenol, to alleviate his pain “all the time.” (Tr. 86, 90) He also recalled taking
prescription Tramadol for the pain in his left foot and for migraines. (Tr. 87) But
the medications provide only temporary relief. (Tr. 90)
Anthony Francis, M.D., testified at the second hearing.

After reviewing

plaintiff’s medical records, he opined that plaintiff had a calcaneal fracture (a heel
bone fracture on the left side), which demonstrated subtalar arthritis (arthritis
below the talus in the middle portion of the foot and between the calcaneus and the
talus). (Tr. 94–95) Although plaintiff refused a subtalar and talonavicular fusion
procedure on his left ankle, Dr. Francis explained that surgery of that type is merely
a “salvage procedure” that might not alleviate plaintiff’s impairment. (Tr. 95) Dr.
Francis also offered the non-medical opinion that “on a more likely than not basis
[plaintiff’s condition] would equal [listing] 1.02A.”

(Tr. 98–99)

Plaintiff had a

laparoscopic procedure to remove his gallbladder, without lingering side effects,
and his obesity is one factor relevant to his ability to work, according to Dr. Francis.
(Tr. 95–96)
Dr. Francis also opined on inconsistencies in the medical evidence presented
to him. A physical residual functional capacity assessment from August 26, 2011
records that plaintiff has osteoarthritis of the left hip, which may not have been
present, and fails to note osteoarthritis of the left foot.

(Tr. 96, 717–23)

Moreover, according to Dr. Francis, the August 26, 2011 assessment was erroneous
in part because it states that plaintiff could stand or walk for six hours out of an
eight hour workday, which is inconsistent with “most subtalar and talonavicular
arthritis.” (Tr. 96)

7

To the contrary, Dr. Francis opined that plaintiff might be limited to two
hours of standing per day, perhaps less.

(Tr. 99)

In response to the ALJ’s

questions, Dr. Francis explained that no medical evidence supports the conclusion
that plaintiff would be limited to walking no more than three minutes at a time,
standing no more than five minutes at a time, or sitting no more than ten or twenty
minutes at a time. (Tr. 102–03) Dr. Francis maintained that plaintiff’s ability to sit
would be “unlimited” with “normal work breaks.” (Tr. 98–100) While Dr. Francis
believed that someone with plaintiff’s arthritic condition might have to elevate his
leg “at times” during a workday, whether such a person would have to elevate his
leg for “three to four hours” would “depend on the individual.” (Tr. 101)
Consulting expert Dr. James Reid, a clinical psychologist, testified regarding
plaintiff’s alleged mental impairments. (Tr. 105–15) Dr. Reid opined that plaintiff
has an “organic mental disorder, specifically borderline intellectual functioning and
substance addiction disorders.”

(Tr. 106)

That diagnosis was consistent with

plaintiff’s Stanford-Binet test results, which evidenced a full scale IQ score of 72,
according to Dr. Reid.

(Tr. 106–07)

Dr. Reid opined that a Wechsler Adult

Intelligence Scale assessment that concluded plaintiff has a full scale IQ score of 54
was invalid because the Wechsler test results were not consistent with plaintiff
having a valid driver’s license or having previously worked for a lawn maintenance
service.

(Tr. 109)

Moreover, Dr. Reid noted that there is a nearly twenty point

discrepancy between plaintiff’s performance IQ of 55 on the Wechsler test and the
measure of similar functions evidenced by a nonverbal IQ of 74 on the StanfordBinet test.

(Tr. 111)

In Dr. Reid’s assessment, the failure to note an Axis I

8

diagnosis when performing the Wechsler test undercuts the credibility of those
results. (Tr. 114–15)
As Dr. Reid explained, plaintiff’s medical records confirm heavy, daily alcohol
use, which would affect plaintiff’s organic mental disorder, resulting in a “general
diminution in all areas of cognitive functioning” for a period of six to nine months
following a return to sobriety.

(Tr. 107, 109)

Evaluating plaintiff under listing

12.09 (organic mental disorders), Dr. Reid opined that plaintiff’s activities of daily
living are moderately impaired, his social functioning is markedly impaired, and his
concentration, persistence, and pace is markedly impaired, with no evidence of
repeated episodes of decompensation. (Tr. 108) In Dr. Reid’s opinion, taking into
account plaintiff’s substance abuse disorder, his impairments would equal a listing.
Id. However, Dr. Reid opined that with abstinence from drugs and alcohol for an
extended period of time, plaintiff’s activities of daily living would be only mildly
impaired, his social functioning would be only mildly impaired, his concentration,
persistence, and pace would be moderately impaired, and there would continue to
be no episodes of decompensation.

Id.

Given plaintiff’s limitations, he could be

expected to be mildly impaired at completing simple, routine, repetitive tasks and
moderately impaired at completing somewhat more complex tasks, according to Dr.
Reid. Id.
Delores Gonzales, a vocational expert, provided testimony regarding the
employment opportunities for an individual of plaintiff’s age, education, and past
relevant work who retains the residual functional capacity to perform light work but
is limited in the following ways:
[The individual] must have a sit/stand option with the ability to change
positions frequently.
This individual can climb stairs and ramps
9

occasionally, [but] never climb ropes, ladders, [or] scaffolds. This
individual can stoop, kneel, crouch, [and] crawl occasionally. This
individual is limited to pushing and pulling with the left leg to
occasional. This individual must avoid even moderate exposure to
extreme cold and vibrations. [The individual has the] [f]ollowing
mental limitation[s:] [T]his individual can understand, remember,
[and] carry out at least simple instructions, non-detailed tasks,
demonstrate adequate judgment to make simple work-related
decisions, adapt to routine simple work changes, [and] perform
repetitive work according to set procedures, sequence, and pace.
(Tr. 117–19)

When asked if she could identify any jobs that exist in the

local, regional, or national economy for that hypothetical person, Gonzales
identified mail sorter and hand presser.

Id.

The ALJ then changed the

hypothetical to add the following mental limitations:
DAA [substance use disorder] is material. . . . [T]his individual could
understand, remember, [and] carry out simple instruction on detailed
tasks, however, would not be able to maintain concentration and
attention for two-hour segments over a[n] eight-hour period, would
not be able to respond appropriately to supervisors and co-workers in
a task-oriented setting where contact is casual and infrequent, [and]
will not be able to perform work at a normal pace even without
production quotas.
(Tr. 119–20) Gonzales testified that such a person would not be able to perform
any job that exists in significant numbers in the national or local economy. Id.
Plaintiff’s counsel then asked Gonzales if her opinion that work is available
for an individual as described in the ALJ’s first hypothetical would change if the
person had to reposition from sitting to standing and back as often as seven times
an hour. (Tr. 121) Gonzales stated that such frequent changes in position could
eventually decrease the individual’s productivity or “become such a distraction that
it would virtually eliminate” the individual’s ability to work, but “depending on the
job they were doing.” Id. In addition, Gonzales testified that no unaccommodated
jobs would exist for an individual who, per counsel’s hypothetical, “needed breaks

10

every two hours for thirty minutes each to elevate their legs.” Id. Moreover, such
a person would not be able to work competitively if he was “simply off task,
completely unproductive, at about 33[%] of the time.” Id. If the person had to be
retrained on the job at least every other day “because of memory or training
issues,” the person would also not be able to find employment. Id. While a person
who cannot read or write might be unable to work as a mail sorter, Gonzales
testified that such a person can still work as a hand presser. (Tr. 122)
D. Medical Records
1. Left Leg and Hip Impairments
Plaintiff’s medical records document his history of arthritis. On July 2, 2007,
an x-ray of plaintiff’s left leg revealed that his left knee is normal, while his left
ankle and tarsus have enthesopathy.

Another left leg x-ray on June 10, 2008

discovered “ossification adjacent to the talonavicular joint[,] which probably
represent[s] [an] os supranaviculare.”

(Tr. 533)

An x-ray of plaintiff’s left hip,

however, found no arthritis, acute fracture, dislocation, or soft tissue calcifications,
only “mild nonuniform joint space narrowing.” Id. Dr. David Kieffer examined yet
another x-ray of plaintiff’s left foot on November 30, 2007 and diagnosed plaintiff
with “significant midfoot arthritis at [the] talonavicular, naviculocuneiform[,] and
calcaneocuboid joints,” with “[s]ignificant spurring on [the] dorsum.” (Tr. 656) Dr.
David Karges confirmed the diagnosis of “arthritis of the left subtalar and
talonavicular joints” after examining plaintiff on December 29, 2009. (Tr. 813)
Additionally, in June 2007, plaintiff was treated for cellulitis of the right foot,
which caused localized tenderness, redness, swelling, and affected his gait.

(Tr.

502) He was advised to soak his foot in Epsom salts to decrease the swelling. Id.

11

That same month, when he visited the hospital because “he was down on the
ground and his step-daughter and mother were jumping on him,” plaintiff
complained of experiencing “left knee pain and limping.” (Tr. 608)
Plaintiff’s medical records contain a number of reports of his symptoms. On
May 2, 2007, Zachary Newland, D.P.M., treated plaintiff for complaints of gout in
his left foot and an “old injury” to his right foot. (Tr. 503) Dr. Newland observed
that plaintiff suffered from “generalized tenderness” and that he complained of
“resultant weakness and pain on a regular basis.”

Id.

During the examination

plaintiff alleged that “he has been unable to maintain any jobs because [his] left leg
[is] ‘giving out on him always.’”

Id.

Dr. Newland reported that plaintiff had

“noticeable decrease in [his left] leg girth and 1 grade muscle strength.” Id. On
August 1, 2007, plaintiff was seen by Shirley Marshall, M.D., because he
experienced pain while walking, during which examination he reported that he was
unable to fully extend his left knee, and that he had swelling and pain in his left
knee and calf. (Tr. 497)
On May 6, 2008, Arjun Bhattacharya, M.D., examined plaintiff and detailed
his reports of tenderness in his left ankle and foot, and his claims of weakness in
the left leg and a limp.2 (Tr. 517) Plaintiff claimed that he was able to walk about
one block, stand for between 15 and 30 minutes, climb a flight of stairs, and bend
but not squat. Id. Dr. Bhattacharya observed that plaintiff “walks with a cane that
he bought himself.” Id. Plaintiff “winced” at the slightest touch to his left hip, even
though

Dr.

Bhattacharya

inflammation in the hip.
2

Id.

Plaintiff erroneously identifies Dr.

Silvermintz, M.D.

observed

no

obvious

deformity

or

evidence

of

He also “resist[ed] all movement of the foot and

Bhattacharya’s examination records as the product of Saul

12

toes[,] claiming that it causes severe discomfort.”

Id.

Plaintiff reported being

unable to walk without the cane; he had a marked limp, and he could not heel or
toe walk.

Id. Yet, he could “get on and off the examination table without any

difficulty.” Id.
Dr. Newland again examined plaintiff on August 20, 2009 and observed that
he had “decreased size and girth” in his left leg, with an enlarged exterior digitorum
brevis muscle on his left foot.

(Tr. 594)

In Dr. Newland’s medical source

statement of October 31, 2009, he reported that plaintiff can stand or walk for two
hours continuously, without a break, that he can stand or walk for two hours
throughout an eight-hour workday with usual breaks, and that he can lift or carry
up to twenty pounds. (Tr. 653) When asked to opine regarding how long plaintiff
can sit continuously without a break, Dr. Newland diagnosed: “No sitting
limitations.” Id. Yet, Dr. Newland reported that plaintiff will need to “elevate [his
leg] 4 hours per 8 hour shift,” “[d]ue to edema.” (Tr. 654) Dr. Newland’s medical
source statement makes no mention of plaintiff’s arthritis.
Dr. Newland sent a letter to plaintiff’s counsel on November 3, 2009. (Tr.
651) In the letter, Dr. Newland reported that plaintiff has a “chronic” condition of
pain and weakness in his left ankle, foot, and leg, with “noticeable decrease in girth
of [plaintiff’s] left musculature” and “only a (+) 1 muscle strength grade” in his left
leg. (Tr. 651) Dr. Newland opined that plaintiff “is unable to maintain desired jobs
due to weakness,” and that plaintiff is “unable to stand on [his] left leg.”
(emphasis added).

Id.

The letter does not specify the medical cause or causes of

plaintiff’s alleged pain, and it does not mention arthritis.

13

Upon examination by Alan Morris, M.D., on August 15, 2011, plaintiff
reported that he began using a cane in his left hand in 2009, which he uses “100%
of the time.” (Tr. 713) He reported being in constant pain that worsens when he
stands and walks, and he said that he can sit for two hours at a time, stand for
thirty minutes, walk for ten minutes, and lift perhaps ten pounds. Id. Plaintiff also
reported to Dr. Morris that he never takes public transportation.

Id.

Dr. Morris

observed that plaintiff has an “almost imperceptible limp on the left as he walks.”
(Tr. 713–14) Plaintiff’s left calf was thirty-seven centimeters in diameter, while his
right was four centimeters larger.

(Tr. 714)

Dr. Morris concluded that plaintiff

suffers from left leg subtalar and mid-tarsal joint arthritis. Id.
The verisimilitude of plaintiff’s allegations of constant disabling physical
symptoms is called into question by the reports of many medical professionals. On
February 2, 2008, Dr. Marshall examined plaintiff, the notes from which
examination record that plaintiff had “normal posture.”

(Tr. 496)

Likewise, the

assessment of plaintiff’s mental condition performed by Amy Marty, Ph.D., in May
2008 contains information about plaintiff’s physical appearance, including notations
that he suffered from no unusual motor activity and that his posture and gait were
normal. (Tr. 526) Plaintiff was able to move all of his extremities with “good tone”
when he was examined by Faqir Ahmad, M.D., on April 5, 2011.

(Tr. 766)

On

December 19, 2011, Kimberly Perry, D.O., examined plaintiff and reported that his
range of motion was normal in all of his extremities, that none of his extremities
was tender to palpation, and that he had no edema. (Tr. 746) Ketal Patel, M.D.,
examined plaintiff in the emergency room on December 22, 2011 because he
claimed to be suffering from headaches. (Tr. 728) During that examination, Dr.

14

Patel noted that plaintiff had a “normal[,] steady[,] stable gait” and he moved all of
his extremities “equally with good tone.” (Tr. 728–29) None of the aforementioned
records note plaintiff using a cane to ambulate.
Plaintiff

consistently

reported

taking

over-the-counter

medications

to

alleviate the pain from his arthritis and other conditions, including Advil, Aleve,
Ibuprofen, and Tylenol.

(Tr. 446)

At various times over the last several years

plaintiff was also prescribed medication to address his arthritis symptoms, including
Hydrocodone/Apap3 and Indomethacin.4 (Tr. 446, 503, 507, 818) In May 2007, he
was prescribed a 90-day regimen of Ultram.5 Medical professionals also prescribed
or provided him with Amoxicillin6 (for infections), Motrin, and Norvasc7 (for
hypertension). (Tr. 608)
headaches.

(Tr. 496)

He was also prescribed Tramadol for his complaints of
However, plaintiff’s history of taking prescription

medications for arthritis pain is sporadic—several of the medical records state that
he was not taking any medications, prescription or otherwise. (Tr. 539, 756).

3

Hydrocodone/Apap refers to a combination of hydrocodone and Acetaminophen, see
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0010590/ (last visited Feb. 10, 2015), which is
indicated for the relief of moderate to moderately severe pain. See Phys. Desk Ref. 530–31, 3314–15
(60th ed. 2006).
4

“Indomethacin is a nonsteroidal anti-inflammatory drug (NSAID) used to treat mild to moderate
acute pain and relieve symptoms of arthritis.” See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0000945/ (last visited Feb. 11, 2015).
5
Error! Main Document Only.Ultram is a centrally-acting synthetic opioid indicated for management
of moderate to moderately severe chronic pain in adults who require around-the-clock treatment of
pain for extended periods of time. See Phys. Desk. Ref. 2428–29 (63rd ed. 2009) (discussing
extended release product).
6

Error! Main Document Only.Amoxicillin is an antibiotic. See Phys. Desk Ref. 1315–16 (60th ed.
2006).
7
Error! Main Document Only.Norvasc is indicated for the treatment of hypertension and coronary
artery disease. See Phys. Desk Ref. 2546 (61st ed. 2007).

15

2. Mental Impairments
Although the Missouri Special School District has no record of plaintiff’s
attendance at any special education school (Tr. 464), plaintiff maintains—and the
Commissioner does not contest—that he attended special education classes
throughout his education.

(Tr. 42, 69, 85, 382, 400, 478, 525, 527, 539)

The

school(s) he attended did not have delineated grade levels. (Tr. 42, 478, 525, 539)
Plaintiff did not complete high school and he never obtained a GED. (Tr. 42) He
gave contradictory reports to medical personnel about whether he can read and
write. (Tr. 518, 525, 527, 539)
Two assessments of plaintiff’s mental capacity were performed 73 days apart
and yielded conflicting results. Dr. Marty performed an assessment of plaintiff on
May 6, 2008. Her conclusions were based in part on inaccurate information. For
example, during Dr. Marty’s assessment, plaintiff “denied any history of or current
alcohol use.” (Tr. 526) Plaintiff also stated that he “does not drive, pay bills, cook,
go grocery shopping, or complete household chores.”

(Tr. 527)

However, he

“appeared to understand instructions” and was observed “completing tasks to the
best of his ability.”

Id.

Plaintiff “evidenced the ability to maintain adequate

attention and concentration with appropriate persistence and pace throughout the
evaluation.” (Tr. 528)
Dr. Marty performed a Wechsler Adult Intelligence Scale-III (WAIS-III) test,
which yielded the following results: a verbal IQ score of 61, a performance score of
55, a full scale IQ score of 54, a verbal comprehension index score of 63, and a
perceptual organizational index score of 56. (Tr. 527) Dr. Marty concluded, based
on the WAIS-III test and plaintiff’s self-reported activities, including his lack of

16

alcohol use, that plaintiff suffers from “mild mental retardation.” Id. Dr. Kyle De
Vore subsequently reviewed Dr. Marty’s testing methods. (Tr. 554) Dr. De Vore
noted that, although Dr. Marty considered her results “valid,” she failed to “state if
[the] results were consistent with adaptive functioning.” Id.
In contrast, Alison Burner, a licensed psychologist, performed a StanfordBinet 5th Edition test on plaintiff on July 18, 2008, which yielded a full scale IQ
score of 72.

(Tr. 539–40)

The Stanford-Binet test returned the following other

results: a nonverbal IQ of 74, a verbal IQ of 73, a fluid reasoning score of 82, a
knowledge score of 79, a quantitative score of 72, a visual-spatial score of 71, and
a working memory score of 80. (Tr. 540) Ms. Burner remarked that plaintiff’s full
scale IQ score of 72 “falls within the borderline range of intellectual functioning.”
(Tr. 540–41)
Ms. Burner’s assessment was also based on a more forthright narrative of
plaintiff’s history of alcohol use. Plaintiff admitted to Ms. Burner that “alcohol was
not his drug of choice but that he did abuse alcohol regularly.” (Tr. 539) “He said
that he continues to use alcohol and will get drunk every time he drinks if he can
afford enough alcohol.” Id. Plaintiff also reported that his “wife limits his access to
alcohol and money and his old friends, to try to keep him straight and out of
trouble.” Id. According to plaintiff, “he typically drinks once a week[,] but . . . if he
had money[,] he would likely ‘blow it all on alcohol.’” Id.
Ultimately, Ms. Burner concluded that plaintiff shows “no evidence of a
significant cognitive deficiency.

His ability appears to fall within the [b]orderline

range.” (Tr. 542) Based on that diagnosis, Ms. Burner opined that plaintiff “would
be able to follow simple directions without difficulty.” Id. She also concluded that

17

plaintiff has “adequate social skills and should be able to obtain and maintain
employment in line with is intellectual functioning.”

Id.

Finally, plaintiff’s “pace,

performance, and stamina would be within normal limits in a job commensurate
with his cognitive ability[,] as long as he remains clean and sober.” Id.
3. Substance Abuse Disorder
Plaintiff’s medical records counter his repeated assertions that he does not
use alcohol or drugs at all (Tr. 518, 526), or that he uses alcohol only occasionally.
(Tr. 478, 506)

On May 18, 2005, plaintiff’s discharge summary from the Ozark

Correctional Center remarks that he has two Axis I disorders: opioid abuse and
alcohol abuse.

(Tr. 481)

When Ms. Burner examined plaintiff in July 2008, she

reported that he “has a lengthy history of drug and alcohol addiction.”

Plaintiff

reported that he “abuse[s] alcohol regularly,” and that if he had the money, he
would “blow it all on alcohol.” (Tr. 539-40) Ms. Burner diagnosed plaintiff with
opioid dependence, in remission, and alcohol dependence. (Tr. 542)
Consistent with that diagnosis, records from a March 31, 2011 medical
appointment with Drs. Vikram Patney and Muhammad Yasin memorialize plaintiff’s
history of “drinking quite heavily, almost on a daily basis.” (Tr. 755–56) During
that appointment, plaintiff admitted “to drinking a lot of alcohol,” approximately a
pint of Seagram’s liquor per day, according to his wife. Id. So pronounced was
plaintiff’s alcohol abuse in March 2011 that doctors prescribed Librium8 to minimize
his withdrawal symptoms. (Tr. 757)

8
Librium is a brand name for Chlordiazepoxide, which is “used to relieve anxiety and to control
agitation caused by alcohol withdrawal.” See
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682078.html. (last visited Feb. 12, 2015).

18

E. The CDI Investigation
The Social Security Administration’s Cooperative Disability Investigations Unit
(CDI) conducted an inquiry regarding plaintiff’s claims, the report of which was
issued on June 12, 2008.

(Tr. 410–22)

The CDI investigation uncovered a

December 7, 2007 police report that identified plaintiff as a suspect in a burglary.
(Tr. 414) According to that report, plaintiff “was seen by a city employee loading a
refrigerator into the back of his pickup truck. . . .” Id. Plaintiff told the arresting
officers that “he saw the refrigerator on its side in the driveway, so he took it. . . .”
Id.
The CDI investigators also surveilled plaintiff as he traveled from his
residence to a medical appointment on June 10, 2008. Id. Plaintiff was observed
walking with a limp on his left side and using a cane on his left side. (Tr. 415) Dr.
Despine Coulis reviewed the surveillance footage and noted that plaintiff “walk[s]
with a cane [held] in his left hand, implying that a unilateral lower extremity
problem would be on the right side and not the left.” (Tr. 534) Dr. Coulis observed
that plaintiff walked “a distance of approximately 1/4 to 1/2 [a] mile each way” to
his appointment and back.

Id.

“His stance appeared sturdy and straight while

walking; his pace was normal; [and] he did not stop to rest.”

Id.

Plaintiff

descended nineteen steps without the use of a handrail. (Tr. 415) He stepped up
directly onto a curb—he did not use an available curb cut.
walked up a ramp to a train platform.

Id.

Id.

When the train arrived, plaintiff

“hurriedly entered the train just prior to the doors closing.
[plaintiff] did not utilize his cane . . . .” Id.

19

Then, plaintiff

While hurrying,

III.

The ALJ’s Decision

In the decision issued on October 12, 2012, the ALJ made the following
findings:
1.

Plaintiff has not engaged in substantial gainful activity since December
3, 2007, the application date.

2.

Plaintiff has the following severe impairments: healed left foot
fracture; arthritis of the left ankle and foot; obesity; substance abuse
disorder; organic mental disorder (borderline intellectual functioning).
Plaintiff has the following non-severe impairments: status post
cholecystectomy without residual effect; and hypertension controlled
with medication compliance.

3.

Plaintiff’s mental impairments, considering the effects of the substance
abuse disorder, meet sections 12.02 and 12.09 of 20 C.F.R. Part 404,
Subpart P, Appendix 1.

4.

If plaintiff stopped the substance abuse, the remaining limitations
would cause more than a minimal impact on plaintiff’s ability to
perform basic work activities. Therefore, plaintiff would continue to
have a severe impairment or combination of impairments.

5.

If plaintiff stopped the substance use, plaintiff would not have an
impairment or combination of impairments that meets or medically
equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

6.

If plaintiff stopped the substance abuse, plaintiff would have the
residual functional capacity (RFC) to perform light work as defined in
20 C.F.R. § 416.967(b) except that plaintiff: must have a sit/stand
option with the ability to change positions frequently; can climb stairs
or ramps occasionally, but cannot climb ladders/ramps/scaffolds; can
stoop, kneel, crouch and crawl occasionally; can push and/or pull
using the left leg occasionally; needs to avoid even moderate exposure
to vibrations and extreme cold; can understand, remember, and carry
out at least simple instructions, non-detailed tasks; can demonstrate
adequate judgment to make simple, work related decisions; can adapt
to simple routine work changes; and can perform repetitive work
according to set procedures, sequence, and pace.

7.

If plaintiff stopped the substance use, plaintiff would be unable to
perform past relevant work.

8.

Plaintiff was born on September 28, 1960 and was 47 years old, which
is defined as a younger individual age 18-49, on the date the
20

application was filed. He was 50 years of age on the date the opinion
was issued, an individual closely approaching advanced age.
9.

Plaintiff has a limited education and is able to communicate in English.

10.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that plaintiff is “not disabled,” whether or not
plaintiff has transferable job skills.

11.

If the claimant stopped the substance use, considering the claimant’s
age, education, work experience, and RFC, there would be a significant
number of jobs in the national economy that plaintiff could perform.

12.

The substance use disorder is a contributing factor material to the
determination of disability because plaintiff would not be disabled if he
stopped the substance use. Because the substance use disorder is a
contributing factor to the determination of disability, plaintiff has not
been disabled within the meaning of the Social Security Act at any
time from the date the application was filed through the date of the
ALJ’s decision.

(Tr. 10–27).
IV.

Legal Standards

The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds 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 decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).

21

To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).

The

Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009).

“Each step in the disability determination entails a separate analysis

and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment,
and (3) his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at
942. If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.”
Moore, 572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). “RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and

22

others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility.

Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
dosage,

effectiveness,

and

side

effects

of

medication;

(5)

any

functional

restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.” Buckner, 646 F.3d at 558
(quotation and citation omitted). “Although ‘an ALJ may not discount a claimant’s
allegations of disabling pain solely because the objective medical evidence does not
fully support them,’ the ALJ may find that these allegations are not credible ‘if there
are inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421
F.3d 785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must
make express credibility determinations and set forth the inconsistencies in the
record which caused the ALJ to reject the claimant’s complaints.

Singh v. Apfel,

222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir.
1998).
At step four, the ALJ determines whether claimant can return to his past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove his RFC and establish
that he cannot return to his past relevant work. Moore, 572 F.3d at 523; accord

23

Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001); see
also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by his impairment from doing any other work,
the ALJ will find the claimant to be disabled.
V.

Discussion

Plaintiff presents three questions for review: (1) whether the ALJ erred at
step 3 in failing to find that plaintiff meets listing 1.02(A);

(2) whether the ALJ

erred in finding that plaintiff’s substance abuse was material to his disability; and
(3) whether the ALJ erred in his RFC determination (a) by affording little weight to
certain opinions of plaintiff’s treating podiatrist, Dr. Newland; and (b) by failing to
include all of the limitations allegedly endorsed by Dr. Francis.
A. Listing 1.02(A)
Plaintiff alleges that the ALJ erred in failing to find that substantial evidence
supports the conclusion that he meets or equals listing 1.02(A).

Listing 1.02(A)

addresses major dysfunctions of the joints—including the weight-bearing joints of
the hip, knee, or ankle—resulting in the inability to ambulate effectively. 20 C.F.R.
§ 404, Subpart P, App. 1, 1.02(A). The inability to ambulate effectively is defined
as an “extreme limitation of the ability to walk” so severe that the individual cannot
ambulate “without the use of a hand-held assistive device(s) that limits the

24

functioning of both upper extremities.”
1.00(B)(2)(b)(1),(2) (emphasis added).

20 C.F.R. § 404, Subpart P, App. 1,
“Therefore examples of ineffective

ambulation include . . . the inability to walk without the use of a walker, two
crutches or two canes . . . .” Id.
“Although it is preferable that ALJs address a specific listing, failure to do so
is not reversible error if the record supports the overall conclusion, as it does in this
case.” Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003); see
also Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 n.3 (8th Cir. 2005).
Though the ALJ’s opinion does not discuss listing 1.02(A), the ALJ cited substantial
evidence that plaintiff has, at most, used a single cane to ambulate, and not
universally.

No evidence in the record, moreover, supports the conclusion that

plaintiff is or has ever been unable to walk without an assistive device that limits
the function of both his upper extremities. So while the ALJ gave significant weight
to Dr. Francis’s opinion regarding certain medical issues, the ALJ need not have
addressed Dr. Francis’s erroneous legal conclusion that plaintiff meets the listing.
Therefore, the ALJ did not err in failing to discuss listing 1.02(A) in his opinion
because substantial evidence supports the conclusion that plaintiff does not meet
that listing.
B. Substance Abuse Disorder
Plaintiff contends that the ALJ erred in determining that substance abuse is a
contributing factor to his severe mental impairments.

“An individual is not

considered to be disabled . . . if alcoholism or drug addiction would . . . be a
contributing factor material to the Commissioner’s determination that the individual
is disabled.” Estes, 275 F.3d at 724 (quoting 42 U.S.C. § 423(d)(2)(C)); see also

25

Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003). Drug addiction or
alcoholism is material if the limitations that formed the basis of the Commissioner’s
disability determination would no longer be present if the claimant stopped using
drugs or alcohol. 20 C.F.R. §§ 404.1535(b), 416.935(b).
The analysis requires the ALJ to first determine whether the claimant is
disabled. Viers v. Astrue, 582 F. Supp. 2d 1109, 1122 (N.D. Iowa 2008); see 20
C.F.R. §§ 404.935, 404.1535 (“If we find that you are disabled and have medical
evidence of your drug addiction or alcoholism, we must determine whether your
drug addiction or alcoholism is a contributing factor material to the determination of
disability.” (emphasis added)). “The ALJ must reach this determination initially . .
. using the five-step approach . . . without segregating out any effects that might
be due to substance use disorders.”
omitted).

Brueggemann, 348 F.3d at 694 (citation

This determination must be based on “substantial evidence of [the

claimant’s] medical limitations without deductions for the assumed effects of
substance use disorders.” Id.
If the ALJ concludes that the individual would be disabled based upon all
limitations, the ALJ must then consider whether drug addiction or alcoholism is
“material” to the determination of disability.

This requires a two-step analysis.

Rehder v. Apfel, 205 F.3d 1056, 1060 (8th Cir. 2000).

First, the ALJ should

determine which of the claimant’s physical and mental limitations would remain if
the claimant refrained from substance use.

Id.

Then, the ALJ must determine

whether the claimant’s remaining limitations would be disabling.

Id.

If the

claimant’s remaining limitations would not be disabling, the claimant’s alcoholism or
drug addiction is a contributing factor material to a determination of disability and

26

benefits will be denied. Id. If the claimant would still be considered disabled due
to his or her remaining limitations, the claimant is disabled and entitled to benefits.
Id. The claimant carries the burden of proving that alcoholism or drug addiction is
not a material factor to the finding of disability.

Estes, 275 F.3d at 725 (citing

Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)).
Plaintiff challenges the ALJ’s determination that his alcohol consumption was
a contributing factor to his mental impairments on two grounds:

First, plaintiff

contends that there is “no objective evidence” that he has a substance abuse
disorder.

[Doc. #12, at 12]

To the contrary, the record developed by the ALJ

contains substantial evidence to support the ALJ’s conclusion that plaintiff has the
substance abuse disorder of alcohol addiction. While the ALJ found plaintiff’s selfserving complaints of disabling symptoms not credible (Tr. 25), the ALJ need not
have discounted plaintiff’s admission at the hearing that he drinks alcohol
frequently, as much as he has available. (Tr. 14, 16, 19, 55–56) Likewise, the ALJ
did not err when he accorded great weight to Dr. Reid’s opinion that the medical
records confirm plaintiff’s heavy, daily alcohol use. (Tr. 14–15, 17, 107, 109) The
ALJ also appropriately took into account plaintiff’s medical records evidencing a past
diagnosis of substance abuse disorder for alcohol.

(Tr. 19, 481) Ms. Burner’s

assessment that plaintiff has a lengthy history of alcohol dependence contributed to
the ALJ’s finding of substantial evidence as well. (Tr. 16, 539) Moreover, the ALJ
properly credited plaintiff’s admissions at medical appointments to, in short,
“abusing alcohol regularly.”

(Tr. 16, 19, 755–57)

Substantial evidence thus

supports the ALJ’s conclusion that plaintiff has a substance abuse disorder.

27

Second, plaintiff asserts that even if he has a substance abuse disorder, the
ALJ failed to identify any evidence of a period of sobriety that would reveal his
functional limits absent the substance abuse.

In other words, he contends that,

because he regularly abuses alcohol, it is impossible to assess his mental
impairments without substance use. As defendant notes, however, plaintiff retains
the burden to establish that he would have disabling mental impairments if
substance abuse were not a contributing factor. Estes, 275 F.3d at 725.
Moreover, the ALJ accorded great weight to Dr. Reid’s opinion that, based on
the medical evidence and his expertise, plaintiff’s cognitive function could be
expected to improve with six to nine months of sobriety, and that plaintiff would
not have disabling cognitive impairments after such a period. (Tr. 14, 17, 107–09)
The ALJ also extensively noted plaintiff’s lack of mental health or medical issues
following eight months of forced sobriety during a period of incarceration. (Tr. 19,
481) Plaintiff’s conflicting IQ test results, only the higher of which was based on an
accurate report of plaintiff’s alcohol use, were also taken into account by the ALJ in
making the materiality determination.

(Tr. 15–17, 106–09, 111, 114–15, 527,

539–40) Plaintiff cites no evidence, in the record or otherwise, to counter to those
findings.

Accordingly, the ALJ having found the substance use disorder material

based on substantial evidence, he did not err.
C. Residual Functional Capacity
According to plaintiff, the ALJ erred in his RFC determination (1) by failing to
evaluate “all of the opinions of record” and (2) by failing to “include the actual
limitations assessed by the opinions that were given weight to.” [Doc. #12 at 12]
The Commissioner devotes some effort to defending the ALJ’s analysis of Dr. Reid’s

28

opinion, which focused on plaintiff’s mental impairments. In point of fact, however,
plaintiff alleges error in the ALJ’s RFC assessment only as it pertains to the
statements of Drs. Newland and Francis, which concern plaintiff’s physical
impairments.

See id. at 12–15.

Accordingly, the ALJ having appropriately

considered the opinions of all other sources, as plaintiff concedes, the Court’s
discussion below is confined to the ALJ’s analysis of the opinions of Drs. Newland
and Francis regarding plaintiff’s physical condition.
A claimant’s RFC is “the most a claimant can still do despite his or her
physical or mental limitations.”

Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.

2011) (internal quotations, alteration, and citations omitted). “The ALJ bears the
primary responsibility for determining a claimant’s RFC and because RFC is a
medical question, some medical evidence must support the determination of the
claimant’s RFC.”

Id. (citation omitted).

The ALJ should obtain medical evidence

that addresses the claimant’s “ability to function in the workplace.” Lauer v. Apfel,
245 F.3d 700, 704 (8th Cir. 2001) (quoting Nevland v. Apfel, 204 F.3d 853, 858
(8th Cir. 2000)).

“However, the burden of persuasion to prove disability and

demonstrate RFC remains on the claimant.” Id. Even though the RFC assessment
draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner.

Cox v. Astrue, 495 F.3d 614, 619

(8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946). “Because the social
security disability hearing is non-adversarial, however, the ALJ’s duty to develop
the record exists independent of the claimant’s burden in this case.”
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).

29

Stormo v.

1. Dr. Newland’s Opinion
Dr. Newland was plaintiff’s treating podiatrist.

Generally, the Commission

gives more weight to the opinion of a source who has examined a claimant than a
source who has not.

20 C.F.R. § 419.927(c)(1).

When the treating physician’s

opinion is supported by proper medical testing, and is not inconsistent with other
substantial evidence in the record, the ALJ must give the opinion controlling weight.
Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012) (citing 20 C.F.R.
§ 404.1527(c)(2)). An examining physician’s opinion, however, neither inherently
or automatically has controlling weight and “does not obviate the need to evaluate
the record as a whole.”

Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014)

(internal quotations and citations omitted).
“An ALJ may discount or even disregard the opinion of a treating physician
where other medical assessments are supported by better or more thorough
medical evidence, or where a treating physician renders inconsistent opinions that
undermine the credibility of such opinions.” Wildman v. Astrue, 596 F.3d 959, 964
(8th Cir. 2010) (alteration in original) (internal quotation omitted). Moreover, “[a]n
ALJ is entitled to give less weight to the opinion of a treating doctor where the
doctor’s opinion is based largely on the plaintiff’s subjective complaints rather than
on objective medical evidence.” Rosa v. Astrue, 708 F. Supp. 2d 941, 950 (E.D.
Mo. 2010); see also Davis v. Shalala, 31 F.3d 753, 756 (8th Cir. 1994); Loving v.
Dep’t Health & Human Serv., 16 F.3d 967, 971 (8th Cir. 1994). An ALJ may not
substitute his own opinions for the opinions of medical professionals.

Ness v.

Sullivan, 904 F.2d 432, 435 (8th Cir. 1990); see also Pate-Fires, 564 F.3d at 946–
47 (ALJs may not “play doctor”). However, an ALJ “need not adopt the opinion of a

30

physician on the ultimate issue of a claimant's ability to engage in substantial
gainful employment.” Qualls v. Apfel, 158 F.3d 425, 428 (8th Cir. 1998) (internal
quotations and citations omitted). Ultimately, the ALJ must “give good reasons” to
explain

the

weight

given

the

treating

physician’s

opinion.

20

C.F.R.

§ 404.1527(c)(2). But, of course, an ALJ is not required to discuss in detail every
item of evidence. Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998).
Plaintiff asserts that the ALJ erred in giving very little weight to portions of
Dr. Newland’s opinion because the portions discounted were based on plaintiff’s
subjective reports, without objective or independent medical verification. Far from
providing only conclusory reasons for discounting Dr. Newland’s opinion, as plaintiff
alleges, the ALJ’s well-reasoned decision contains eight single-spaced pages of
analysis concerning plaintiff’s RFC, which includes extensive discussion of Dr.
Newland’s opinion and the ALJ’s reasons for discounting it. (Tr. 18–25)

Chiefly,

the ALJ afforded little weight to Dr. Newland’s opinion letter of November 3, 2009
because in it Dr. Newland speaks of plaintiff’s inability to maintain “desired” jobs.
(Tr. 21, 651) The ALJ did not err in according little weight to the letter because Dr.
Newland opined only that plaintiff is unable to perform such jobs as he desires,
which is not the standard for determining disability.

(Tr. 21)

Moreover, Dr.

Newland’s statement of support that plaintiff is disabled is outside his expertise; it
is a question for the Commissioner. See Qualls, 158 F.3d at 428.
The ALJ also provided sufficient reasons to discount Dr. Newland’s medical
source statement.

As the ALJ explained, Dr. Newland opined that plaintiff can

stand or walk continuously, without a break, for as long as two hours in an eighthour workday and sit continuously without any limitations. (Tr. 22, 653) Yet, Dr.

31

Newland went on to opine that plaintiff needs to lie down or recline to elevate his
leg for up to four hours of an eight-hour workday, due to edema. (Tr. 22, 654)
The ALJ noted that those statements are internally inconsistent and, therefore, the
ALJ was entitled to, and ultimately did, accord them little weight.

Id.; Wildman,

596 F.3d at 964. It was not error, moreover, for the ALJ to discount Dr. Newland’s
statement that plaintiff must lie down or recline to elevate his leg because Dr.
Newland did not cite any medical basis for that statement; it appeared “to be based
merely upon subjective report[s] from” plaintiff. (Tr. 22, 654); Rosa, 708 F. Supp.
2d at 950.
Finally, the ALJ’s extensive discussion of plaintiff’s physical conditions, as
evidenced by the record as a whole, undercuts plaintiff’s argument that the ALJ
failed to provide good reasons for not giving Dr. Newland’s opinion controlling
weight. The ALJ explicitly stated that “the totality of the evidence does not fully
support the degree of severity of subjective complaints and functional limitations
alleged by” plaintiff. (Tr. 19) For example, the ALJ noted that plaintiff testified he
elevates his leg three to four times per day, not three to four hours. (Tr. 18) The
ALJ took into account several medical reports that showed plaintiff had no swelling,
inflammation, or edema of the extremities, which undermines Dr. Newland’s
assessment that plaintiff must daily elevate his leg to manage that condition. (Tr.
20) Finally, the ALJ explained that plaintiff’s credibility in reporting his conditions—
to Dr. Newland, the ALJ, and to other sources—is undermined by his poor work
history, his financial motivation to seek benefits, and his inconsistencies and
exaggerations when describing his alleged symptoms.

(Tr. 14–25); see Lamp v.

Astrue, 531 F.3d 629, 632 (8th Cir. 2008); O’Donnell v. Barnhart, 318 F.3d 811,

32

818 (8th Cir. 2003); Johnson, 240 F.3d at 1148–49. Accordingly, the ALJ did not
err in assessing Dr. Newland’s opinions.
2. Dr. Francis’s Opinion
Plaintiff contends that the ALJ erred in his RFC assessment because he did
not include Dr. Francis’s purported endorsement of plaintiff’s claims that he must
elevate his leg up to four hours per day and must use a cane to ambulate. While
the ALJ gave significant weight to Dr. Francis’s opinion, an “ALJ is not required to
rely entirely on a particular physician’s opinion or choose between the opinions [of]
any of the claimant’s physicians.” Martise, 641 F.3d at 927. Here, the ALJ credited
Dr. Francis’s findings as to some of plaintiff’s physical symptoms, but he was not
required to accept Dr. Francis’s opinion regarding every issue or question posed.
Moreover, as to the specific findings with which plaintiff takes issue, he
mischaracterizes Dr. Francis’s statements. While Dr. Francis believed that someone
with plaintiff’s arthritic condition might have to elevate his leg “at times” during a
workday, whether such a person would have to elevate his leg for “three to four
hours” would “depend on the individual.” (Tr. 101) As discussed above, the ALJ
articulated good reasons for concluding that plaintiff does not have to elevate his
leg for three to four hours per day, which limitation was not even endorsed by Dr.
Francis.
Although Dr. Francis opined that it would be normal for someone with
plaintiff’s arthritic condition to use a cane sometimes (Tr. 101), the ALJ also
provided good reasons for concluding that plaintiff does not need a cane to
ambulate.

The ALJ noted plaintiff’s inconsistent statements regarding how

frequently he uses a cane, his admission to using it infrequently, that the cane was

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not prescribed to him, and that plaintiff did not use a cane at the hearing. (Tr. 18–
19, 22)

As the ALJ explained, plaintiff was also reported at various medical

appointments to have required no more than “minimal medical care” for his
arthritis, including appointments that note no arthritis symptoms and many
appointments where plaintiff was not prescribed any medication. (Tr. 20) Plaintiff
also demonstrated “symptom magnification” when evaluated, according to the ALJ.
Id. Finally, the ALJ noted the CDI report of plaintiff loading a refrigerator onto a
truck by himself—an activity inconsistent with plaintiff’s reports that his left leg
cannot even support his own weight without a cane—and plaintiff using his cane on
the wrong side for a condition of his left leg. (Tr. 20–21)
It was therefore proper for the ALJ to discount plaintiff’s inconsistent,
subjective reports of needing a cane to ambulate as well as Dr. Francis’s opinion
with regard to the frequency with which plaintiff might need to use a cane. See
Smith v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014) (explaining that a court is to
“defer to the ALJ’s evaluation of [a claimant’s] credibility, provided that such
determination is supported by good reasons and substantial evidence, even if every
factor is not discussed in depth” (internal quotation marks and citation omitted));
Goff, 421 F.3d at 790–91 (“[A]n appropriate finding of inconsistency with other
evidence alone is sufficient to discount [an] opinion.”).

Thus, in formulating the

RFC, the ALJ did not err by failing to include the above restrictions on ambulation.
VI.

Conclusion

For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole. Therefore,
plaintiff is not entitled to relief.

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Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of March, 2015.

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