Taylor v. Social Security Administration

Filing 20

MEMORANDUM and ORDER. (see order for details) IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 12/18/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH A. TAYLOR,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case number 4:14cv0556 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the
final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security
(Commissioner), denying the applications of Kenneth Taylor (Plaintiff) for disability
insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401433, and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C.
§ 1381-1383b, is before the undersigned United States Magistrate Judge by written consent
of the parties. See 28 U.S.C. § 636(c).
Procedural History
Plaintiff applied for DIB and SSI in November 2010, alleging he was disabled as of
April 1, 2008, because of plates in his legs, pins in his ankle, cracked vertebrae, and spinal
problems. (R.1 at 132-46, 219.) His applications were denied initially and in February 2013

References to "R." are to the administrative record filed by the Acting Commissioner with
her answer.
1

after a hearing held in August 2012 before Administrative Law Judge (ALJ) Kenneth G.
Biskup. (Id. at 8-23, 28-76, 84-91.) After considering additional evidence, the Appeals
Council denied Plaintiff's request for review, thereby effectively adopting the ALJ's decision
as the final decision of the Commissioner. (Id. at 1-4)
Testimony Before the ALJ
Plaintiff, appearing without representation, Jeffrey F. Magrowski, Ph.D., and Cheresse
Lambers, Plaintiff's fiancé, all testified at the administrative hearing.
Plaintiff testified that he was then 46 years old, 6 feet tall, and weighed 190 pounds.
(Id. at 36.) His weight in April 2008 was approximately 220 pounds. (Id.) He obtained his
General Equivalency Degree (GED) in 1982. (Id.) He has graduated from truck driving
school, but has never used the diploma. (Id. at 36-37.)
Plaintiff has primarily worked as a construction laborer. (Id. at 37.) He has done the
work of a concrete finisher, bricklayer, carpenter, drywall hanger, painter, and landscaper.
(Id.) He had tried working for a temporary service after April 2008. (Id. at 38-39.) After
December 31, 2011, he had tried working as a restaurant cook but was fired because he could
not keep up. (Id. at 41.) In April 2012, he had tried handing out samples for a ham store.
(Id. at 42.)
He has a titanium plate in his right leg and pins in his right ankle. (Id. at 43.) These
were placed in the 1990s as a result of a gunshot wound. (Id.) He was being treated by Dr.
Boyd-Taylor, but has not seen her after April 2008 because his insurance ran out. (Id. at 44.)
He owes her $75 for a co-pay and "just quit trying." (Id. at 45.) Asked if he had gone to any
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of the health clinics that offer care that is free or at a reduced charge, Plaintiff explained that
he cannot afford even the little co-pay the clinics require. (Id. at 44.) He had not tried any
clinics, but had called one and found out its co-pay. (Id. at 44-45.) He never went to a clinic
and asked if they would provide services for free or for a reduced charge. (Id. at 45.) Three
or four days earlier, he received a Medicaid card. (Id.)
Asked about an x-ray of May 9, 2011, Plaintiff replied that he had not been x-rayed
then. (Id. at 46-47.)
Plaintiff's back has started to hurt because of the problems with his right leg. (Id. at
48.)
Asked about the period after April 1, 2008, Plaintiff testified that he cannot carry
anything and cannot lift anything heavier than ten pounds. (Id. at 48-49.) He does not go to
the grocery store because he cannot walk farther than one block. (Id. at 49.) He cannot stand
for longer than twenty to thirty minutes or sit for longer than "an hour or so" before having
to lay down for a couple of hours. (Id. at 51.) He has difficulty using the stairs in his house
down to the basement. (Id. at 53.) He does not take any pain medication. (Id. at 52.) He was
taking ibuprofen but was told when recently hospitalized that it was aggravating his ulcers.
(Id.)
His fiancé does all the cooking, cleaning, and laundry. (Id. at 54.) His daughters, one
age seven and one age sixteen, live with them. (Id.)
Asked what he does on a typical day, Plaintiff replied that he watches television and
reads books or magazines. (Id. at 54-55.) He does "[p]retty much nothing." (Id. at 54.) He
-3-

stopped driving a year ago because of problems with his leg. (Id. at 55-56.) His fiancé
drives. (Id. at 56.)
Also, Plaintiff gets cramps in his arms and, approximately every other day, cannot
raise them over his head. (Id. at 56-57.)
Ms. Lambers testified that Plaintiff had been treated for his ulcers between 2002 and
2004. (Id. at 60-61.) At the end of May, he was hospitalized at St. John's for high blood
pressure. (Id. at 62.) He is now taking medication for it. (Id.) He stopped doing yard work
in mid-2008. (Id. at 64.)
She further testified that she thinks Plaintiff does not go places because he is
depressed. (Id. at 64.) She has suggested that he see someone about his depression. (Id. at
65.)
Dr. Magrowski testified as a vocational expert (VE). (Id. at 65-71.) He was asked by
the ALJ to assume a hypothetical claimant of Plaintiff's age, education, and past work
experience who is limited to light work with additional restrictions of only occasionally
climbing stairs or ramps and never climbing ladders, ropes, or scaffolding. (Id. at 68.) This
person needs to alternate between sitting and standing. (Id.) Asked if this person can
perform any work, the VE replied that he cannot perform Plaintiff's past relevant work but
can work as a parking lot attendant, contribution solicitor, and cashier. (Id. at 68-69.) These
jobs exist in significant numbers in the state and national economies. (Id.)
If this hypothetical claimant can only perform work at the sedentary exertional level,
there are jobs he can perform, including surveillance system monitor, order clerk in the food
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and beverage industry, or some bench assembly work. (Id. at 69.) There is typically very
little reaching overhead required in a sedentary job. (Id. at 70.)
If an individual needs to take an extra break at an unscheduled time or to lay down,
he cannot maintain competitive employment. (Id.)
The VE further stated that his testimony was consistent with the Dictionary of
Occupational Titles (DOT). (Id. at 70-71.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms Plaintiff completed as part of
the application process, documents generated pursuant to his applications, records from health
care providers, and assessments of his physical and mental functional capacities.
When applying for DIB and SSI, Plaintiff completed a Disability Report, listing June
1, 2010, as the date when he stopped working because of his impairments. (Id. at 219.) He
has completed the twelfth grade. (Id.) The interviewer noted that Plaintiff "walked with a
noticeable limp." (Id. at 209.)
Plaintiff had reportable annual earnings for years from 1982 to 1986, inclusive, 1988
to 1996, inclusive, 1998 to 2008, inclusive, and 2010. (Id. at 149.) His highest earnings were
$14,558,2 in 1985. (Id.) In only three other years – 1986, 1999, and 2007 – did his earnings
exceed $10,000 annually. (Id.) In only five of the remaining twenty-three years, did his
earnings exceed $5,000 annually. (Id.)

2

All amounts are rounded to the nearest dollar.
-5-

The relevant medical records before the ALJ are summarized below in chronological
order, beginning with the July 24, 2007, record of his office visit to Peggy Boyd-Taylor,
D.O.,3 for complains of back pain. (Id. at 255.) It was noted that he operated a jack hammer.
(Id.) He was given a prescription for Vicodin. (Id.)
In August, Plaintiff completed a Pain Assessment form for Dr. Taylor, reporting that
the pain was in his back, had not changed during the past thirty days, was an eight on a tenpoint scale, with ten being the worst, was worse at 2:00 p.m., and was disabling, as compared
to being a nuisance or distracting. (Id. at 254.) In October, using the same form, Plaintiff
reported that his pain was in his back and legs, was a nine, was worse at 6:00 a.m. and 6:00
p.m., and was disabling. (Id. at 253.) His responses were the same when he completed the
form again in December. (Id. at 252.) In January 2008, his responses were the same with the
exception of his pain level being a ten. (Id. at 251.)
In April, Plaintiff saw Dr. Boyd-Taylor because he was concerned he had had a stroke.
(Id. at 250, 256.) He had slurred speech and numbness in his right hand. (Id. at 256.) He
was to have an electromyogram (EMG) of his upper extremities. (Id.) He was prescribed
Vicodin for his pain, which he described as being an eight and disabling. (Id. at 250, 256.)
His pain was worse at 6:00 a.m. and 6:00 p.m. (Id.)
Plaintiff's next treatment record is of his admission on May 2, 2012, to Mercy Hospital
for complaints of abdominal pain, loose stools, fever, and chills for the past five days. (Id.

In his supporting brief, Plaintiff identifies Dr. Boyd-Taylor as an "MD." The record reflects
that she is a D.O., or doctor of osteopathic medicine.
3

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at 281-302.) The pain was intermittent and increasing in frequency and severity. (Id. at 281.)
He did not have shortness of breath, chest pain, or a cough. (Id.) His only current medication
was ibuprofen. (Id.) He "denie[d] relevant medical history," but did have a history of
orthopedic surgery to his right leg and an injury in 2009 to his left hand. (Id. at 282.) He
reported having occasional arthritis pains and numbness in his hands, but denied having any
anxiety or mood issues. (Id.) On examination, he was negative for, among other things, back
pain, gait problems, behavioral problems, and decreased concentration. (Id. at 287-88.) He
smoked half a pack of cigarettes a day and drank alcohol socially. (Id. at 282, 287.) A
computed tomography (CT) scan revealed diffuse thickening of the wall of his colon,
particularly on the right but appearing to also extend into his left colon, and "some slightly
enlarged mesenteric lymph nodes in the right lower quadrant." (Id. at 285.) Chest x-rays
were normal. (Id. at 294.) He was diagnosed with acute colitis, given antibiotics, and
discharged with prescriptions for hydrocodone-acetaminophen, Norvasc (for high blood
pressure), Flagyl (an antibiotic), and Cipro (an antibiotic). (Id. at 289, 291, 292.) On
discharge, he was alert, cooperative, and in no distress. (Id. at 292.) It was recommended
that he stop smoking. (Id. at 293.) He was to have a colonoscopy in approximately six weeks
to rule out an atypical presentation of colorectal cancer or inflammatory bowel disease. (Id.
at 289, 292.)
Also before the ALJ were assessments of Plaintiff's mental and physical residual
functional capacities.

-7-

In May 2011, Plaintiff was examination by Elbert H. Cason, M.D., pursuant to his
applications. (Id. at 263-67.) There was no evidence of any neurological, sensory motor, or
reflex abnormalities. (Id. at 263.) There was no muscle atrophy or spasm, but there was
tenderness in the muscles of the lateral aspect of the right thigh. (Id.) Plaintiff had a full
range of motion in both knees and could heel and toe stand. (Id. at 266.) He had a reduced
range of motion in his right ankle, but not in his left. (Id. at 267.) He had a slightly reduced
range of motion on flexion and extension in his lumbar spine. (Id.) He had a full range of
motion in his lumbar spine on lateral flexion to the right and to the left. (Id.) Straight leg
raises were negative. (Id.) He had normal muscle strength in both extremities. (Id.) Dr.
Cason diagnosed Plaintiff with (a) degenerative disc disease and tenderness of the lumbar
paravertebral area with no spasm but with decreased motion and (b) decreased motion in his
right ankle due to an injury. (Id. at 263.) He noted that Plaintiff walked with a limp but did
not use an assistive device. (Id.) X-rays of Plaintiff's lumbar spine revealed grade 2 L5-S1
spondylolisthesis4 with disc space narrowing and degenerative disc disease at L2-L3 and L3L4.5 (Id. at 265.)

"[A] spondylolisthesis is a forward slip of one vertebrae . . . relative to another. . . .
Spondylolisthesis can be described according to its degree of severity. One commonly used
description grades spondylolisthesis, with grade 1 being least advance . . ." Mary Rodts, D.N.P.,
Spondylolisthesis:
Back
Condition
and
Treatment,
http://www.spineuniverse.com/conditions/spondylolisthesis/spondylolisthesis-back-condition-trea
tment (last visited Dec. 16, 2014). In grade 1 25 percent of the vertebral body has slipped forward;
in grade 2 it is 50 percent. Id.
4

The x-ray report is signed by Alan H. Morris, M.D. These are the x-rays that Plaintiff
testified were not taken.
5

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Later that month, a Physical Residual Functional Capacity Assessment (PRFCA) of
Plaintiff was completed by Tracy Gamayo, a single decisionmaker.6 (Id. at 77-83.) The
primary diagnosis was grade 2 spondylolisthesis with disc space narrowing; a secondary
diagnosis was degenerative disc disease of the lumbar spine. (Id. at 77.) These impairments
resulted in exertional limitations of Plaintiff being able to occasionally lift or carry twenty
pounds; frequently lift or carry ten pounds; sit or stand for at least two hours during an eighthour workday; and walk for approximately six hours in an eight-hour workday. (Id. at 78.)
His ability to push and pull was otherwise unlimited. (Id.) He had no postural, manipulative,
visual, or communicative limitations. (Id. at 79-80.) He had one environmental limitation -the need to avoid all exposure to vibration. (Id. at 80-81.)
In October 2012, as directed by the ALJ, Plaintiff underwent an orthopedic evaluation
by Dr. Morris.7 (Id. at 305-18.) Plaintiff's chief complaints were of back pain and right foot,
thigh, and knee pain. (Id. at 305.) He took Vicodin four times a day for the pain. (Id.)
Plaintiff reported that he had injured his right foot in a fall from a roof twenty-two years
earlier and then had a gunshot fracture to his right femur. (Id.) He has had two surgeries on
the femur but no further treatment. (Id.) He has a decreased range of motion in his right knee
and aching pain in his right thigh. (Id.) He has low back pain, and has had for twenty years.

See 20 C.F.R. §§ 404.906, 416.1406 (defining role of single decision-maker under proposed
modifications to disability determination procedures). See also Shackleford v. Astrue, 2012 WL
918864, *3 n.3 (E.D. Mo. Mar. 19, 2012) ("Single decision-makers are disability examiners
authorized to adjudicate cases without mandatory concurrence by a physician.") (citation omitted).
6

7

See note 5, supra.
-9-

(Id.) The pain is constant and aggravated by cold weather, sitting for too long, and bending.
(Id. at 306.) He can sit or stand for two hours and walk for thirty minutes. (Id.) When sitting
he can lift fifty pounds; when standing he can lift twenty-five pounds. (Id.) His children
frequently help him with putting on and taking off his shoes and socks. (Id.) He does not do
any household chores, cooking, shopping, or driving. (Id.) Pain in his right leg wakens him
from sleep approximately every two hours. (Id.) He has normal hand and finger control.
(Id.) On examination, Plaintiff could walk fifty feet without a cane, but walked with an
antalgic limp favoring the right leg. (Id.) He could not heel or toe walk because of pain and
a limited range of motion in his right foot and ankle. (Id.) He lost his balance if he tried to
do a tandem gait. (Id.) The range of motion in his lumbar spine was 60 degrees on flexion,
0 on extension, and 50 on right and left lateral bending. (Id. at 306, 318.) The range of
motion in his right knee was 110 degrees on flexion and 0 on full extension. (Id. at 306, 317.)
The range of motion in his left knee was 140 degrees on flexion and to 0 degrees on
extension. (Id. at 306-07, 317.) The range of motion in his right ankle was "slightly
restricted as compared to the left." (Id. at 307, 318.) He had a one centimeter atrophy of his
right thigh (47 centimeters compared to 48 on the left) and a one centimeter atrophy of his
right calf (36 centimeters compared to 37 on the left). (Id. at 307.) He could independently
rise from a chair and get on and off the examining table. (Id. at 306.) Dr. Morris diagnosed
Plaintiff with fracture right calcaneus with post-traumatic degenerative arthritis of the subtalar joint and grade 2 spondylolitic spondylolisthesis of L5-S1 with degenerative disc disease
of the lumbar spine. (Id.) X-rays of the lumbar spine had also revealed bullet fragments in
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the soft tissue posterior to the level of the right sacroiliac joints. (Id. at 310.) Dr. Morris
assessed Plaintiff as being able to frequently lift up to twenty pounds, occasionally lift up to
fifty pounds, frequently carry up to ten pounds, and occasionally carry up to twenty pounds.
(Id. at 311.) Plaintiff can stand or sit at one time for two hours or walk for thirty minutes.
(Id. at 312.) During an eight-hour day, he can sit or stand for a total of three hours and walk
for a total of two hours. (Id.) He does not require the use of a cane to ambulate. (Id.) He
can frequently use either hand to reach, handle, finger, feel, push, or pull. (Id. at 313.) He
can never use his right foot to operate controls, but can frequently use his left foot. (Id.) He
can occasionally climb stairs and ramps, but can never balance, stoop, kneel, crouch, crawl,
or climb ladders or scaffolds. (Id. at 314.) He can occasionally be exposed to unprotected
heights and moving mechanical parts, but should never operate a motor vehicle. (Id. at 315.)
He can engage in various activities, e.g., shop, travel, prepare a meal, but cannot walk a block
at a reasonable pace on uneven or rough surfaces. (Id. at 316.)
The next day, as also directed by the ALJ, Plaintiff had a psychological evaluation by
Kimberly R. Buffkins, Psy.D., a licensed psychologist. (Id. at 321-27.) Plaintiff reported he
was separated and "living between the homes of various family and friends." (Id. at 321.)
He "report[ed] having problems with depression 'for some years,' but state[d] he has been
feeling fine for the past month." (Id.) He was not seeing a psychiatrist or receiving any
mental health counseling. (Id.) His current medications included Vicodin, blood pressure
medication, and Vitamin D. (Id. at 322.) He had been married once and was separated for
the past twenty years. (Id.) He started drinking alcohol at eleven or twelve years of age and
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had engaged in weekly binge drinking. (Id.) Currently, he drank two to three beers once or
twice a week. (Id.) He graduated from high school. (Id.) On examination, Plaintiff was
cooperative and calm. (Id. at 323.) He walked with a limp and had good eye contact, a
euthymic mood, appropriate affect, and coherent speech with normal rate and tone. (Id.) He
was oriented in all spheres and had intact short-term memory. (Id.) He reported that he often
read, watched sports, and spent time with his children, girlfriend, and mother. (Id.) His
girlfriend drove him most places.

(Id.)

He got along fine with people.

(Id.)

His

concentration, persistence, and pace were adequate. (Id.) Dr. Buffkins diagnosed Plaintiff
with depressive disorder, not otherwise specified, in remission, and alcohol abuse, prior
history, status uncertain. (Id. at 324.) His Global Assessment of Functioning (GAF) was 70
to 75.8 (Id.)
On a Medical Source Statement of Ability to Do Work Related Activities (Mental),
Dr. Buffkins assessed Plaintiff as not being limited by his mental impairments in his abilities
to understand, remember, and carry out instructions; to interact appropriately with
supervisors, co-workers, and the public; and to respond to changes in the routine work

"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. Text
Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the
individual's overall level of functioning,'" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir.
2003), and consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621
F.3d 734, 737 (8th Cir. 2010). A GAF score between 61 and 70 indicates "[s]ome mild symptoms
(e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships." DSM-IV-TR at 34 (emphasis omitted). A
GAF between 71 and 80 is described as "[i]f symptoms are present, they are transient and expectable
reactions to psycho-social stressors . . . ; no more than slight impairment in social, occupational, or
school functioning . . . ." Id.
8

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setting. (Id. at 325-26.) No other capabilities were affected by his mental impairments. (Id.
at 326.) She concluded that, due to the uncertain history of alcohol abuse, he cannot manage
his benefits in his own interests. (Id. at 327.)
The ALJ's Decision
The ALJ first found that Plaintiff had, contrary to his testimony, x-rays taken of his
lumbosacral spine in May 2011. (Id. at 11.) He next found that Plaintiff met the insured
status requirements of the Act through June 30, 2012, and has not engaged in substantial
gainful activity since his alleged onset date of April 1, 2008. (Id. at 14.) And, Plaintiff has
severe impairments of residuals of an old gunshot wound to the right distal femur with
retained internal fixation; post-traumatic degenerative arthritis of right subtalar joint and right
calcaneus; and grade 2 spondylolitic spondylolisthesis of L5-S1 with degenerative disc
disease of the lumbosacral spine. (Id.) His depression is not severe. (Id. at 15.) Plaintiff
does not have an impairment or combination of impairments that met or medically equaled
one of listing-level severity. (Id.)
The ALJ then concluded that Plaintiff has the residual functional capacity (RFC) to
perform sedentary or light work with additional limitations of no climbing of ladders, ropes,
or scaffolds; no kneeling or crawling; only occasionally climbing stairs and ramps; never
driving a motor vehicle; and having to alternate sitting and standing. (Id.) The ALJ
summarized Plaintiff's testimony, Ms. Lambers' testimony, the brief records of Dr. BoydTaylor, and the records from the Mercy Hospital admission. (Id. at 15-18.) He also
summarized the examination reports of Drs. Cason, Morris, and Buffkins. (Id. at 18-19.) He
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concluded that the descriptions of Plaintiff and Ms. Lambers of his disabling limitations were
not credible. (Id. at 19.) The ALJ noted that Plaintiff had sought very little medical care,
"despite the available free or nearly free medical care in the St. Louis metropolitan area," and
took only ibuprofen for pain. (Id.) He found Plaintiff's allegation that he could not afford
the co-pay to see a physician was not credible. (Id. at 20.) The ALJ further noted that
Plaintiff was organized and direct during the hearing and had a sporadic work record. (Id.)
The ALJ gave "much weight" to the opinion of Dr. Morris, finding it supported by the
evidence as a whole and consistent with Dr. Morris' own findings. (Id.) Dr. Morris'
conclusion that Plaintiff cannot balance, stoop, kneel, crouch, crawl, or walk at a reasonable
pace on rough or uneven surfaces was not supported. (Id.) The ALJ also gave "[g]reat
weight" to Dr. Buffkins' opinion. (Id.)
With his RFC, Plaintiff cannot perform any past relevant work. (Id. at 21.) With his
age, education, and RFC, he can perform other work that exists in significant numbers in the
national and state economies, as described by the VE. (Id. at 21-22.)
The ALJ concluded that Plaintiff is not disabled within the meaning of the Act. (Id.
at 22.)
Additional Records before the Appeals Council
Plaintiff submitted additional medical records to the Appeals Council in support of his
request for review. Although the records came from Dr. Boyd-Taylor, there are no treatment
notes from her. Instead, there are copies of other providers' records forwarded to her and her
responses to a Physical Residual Functional Capacity Questionnaire.
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The earliest record is the negative report of October 2012 chest x-rays taken to
investigate Plaintiff's complaints of chest pain. (Id. at 339.) X-rays of his right femur
revealed a healed fixated distal femoral fracture and status post gunshot wound. (Id. at 338.)
In March 2013, Plaintiff went to the emergency room for treatment of a scalp
laceration resulting from hitting his head on a pipe in the basement when doing laundry and
then losing consciousness. (Id. at 349-53, 362.) The staples placed then were removed eight
days later. (Id. at 354-56, 358-60.) He smoked one-half pack of cigarettes a day and drank
42 cans of beer a week and a pint of whiskey a day. (Id. at 358-59.) His medications
included Norvasc, Lioresal (a muscle relaxant), Librium (an anti-anxiety medication),
hydrocodone-acetaminophen, Zestoretic (a diuretic), and Restoril (to treat insomnia). (Id. at
359.)
In April, Plaintiff consulted Mark Friedman, M.D., for multiple episodes of syncope.
(Id. at 340-43.) Dr. Friedman noted that Plaintiff had been seen in the St. Mary's emergency
room three weeks earlier for alcohol withdrawal and that Plaintiff reported he had stopped
drinking two weeks earlier. (Id. at 340.) He further noted that Plaintiff had passed out the
day after being treated in the emergency room for a laceration. (Id.) A workup had been
normal. (Id.) Plaintiff had passed out twice since then. (Id.) Plaintiff was married and had
three children. (Id. at 341.) Dr. Friedman found it difficult to ascertain the details about his
passing out due to Plaintiff having been heavily drinking during the first two episodes. (Id.
at 342.) Because a baseline electrocardiogram was abnormal, Dr. Friedman was concerned
that Plaintiff might have arrhythmia, ordered an echocardiogram to evaluate Plaintiff for
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structural heart disease, and placed a one-month event heart monitor on him. (Id.) He also
encouraged Plaintiff to abstain from alcohol. (Id.) Plaintiff's hypertension was described as
benign and adequately controlled; complaints of chest pain were resolved – a 2012 nuclear
stress test was negative. (Id.) The event monitor revealed no symptomatic, patient-activated
episodes. (Id. at 343.)
In June, Plaintiff consulted Devyani Mehta Hunt, M.D., for low back and right leg
pain. (Id. at 346-48.) Plaintiff reported that his problems began ten years earlier when he
sustained a gunshot wound to his right femur. (Id. at 346.) The discomfort he has had since
was becoming worse. (Id.) Also, he had increasing pain in his low back; the pain was an
eight or nine on a ten-point scale and was worse with walking and sitting. (Id.) The pain
started in his back and radiated down his right leg past his knee. (Id.) He had numbness and
tingling down to his toes. (Id.) And, he had neck pain. (Id.) Ibuprofen and Aleve did not
provide much relief. (Id.) On examination, Plaintiff was alert, oriented, and in no acute
distress.

(Id. at 347.)

He did not have any significant lower extremity swelling or

lymphedema. (Id.) He had pain with full extension and flexion and a positive straight leg
raising test. (Id.) He was tender at the L4 through S1 levels. (Id.) X-rays of his lumbar
spine, cervical spine, and right femur revealed mild retrolisthesis of C3 on C4 and C4 on C5
with moderate to severe degenerative disc disease in the entire cervical spine, most
significantly at C3-C4 through C6-C7. (Id.) He had grade 2 anterolisthesis of L5 on S1 and
moderate to severe degenerative disc disease throughout the lumbar spine, with the most
severe being at L2-L3 and L5-S1. (Id.) Dr. Hunt diagnosed Plaintiff with low back pain with
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right L5 radicular pain in the setting of degenerative disc disease and grade 2 anterolisthesis
of L5 on S1; right thigh pain with history of right femur fracture secondary to gunshot wound
and open reduction with internal fixation, healed; and neck pain. (Id. at 347-48.) Plaintiff
was to have a magnetic resonance imaging (MRI) of his lumbar spine and was prescribed
Neurontin for his pain. (Id. at 348.) Following the MRI, Dr. Hunt diagnosed Plaintiff with
grade 2 anterolisthesis of L5 on S1 with a left pars interarticularis defect; multilevel
degenerative disc disease throughout the lumbar spine; and moderate to severe lumbar
osteoarthritis. (Id. at 336-37.)
In July, Dr. Boyd-Taylor completed a Physical Residual Functional Capacity
Questionnaire on Plaintiff's behalf. (Id. at 330-35.) She reported that she had been treating
Plaintiff monthly since July 2007. (Id. at 330.) His impairments include chronic pain
syndrome, moderate to severe degenerative joint disease, grade 2 spondylolitis
spondylolisthesis, a bulging lumbar disc, atrophy in his right calf and thigh, severe
osteoarthritis of his lumbar spine, gastroesophageal reflux disease (GERD), chronic
cephalalgia (headaches), and depressive disorder. (Id. at 331.) His symptoms include
constant pain in his lower back, an inability to sit or stand for long, persistent neck pain and
dizziness, pain radiating to his arms and hands, and severe right thigh pain. (Id. at 330.)
Plaintiff is not a malingerer. (Id.) His physical condition is affected by depression and
anxiety. (Id.) She assessed Plaintiff as being incapable of performing even low stress jobs
and reported that he will have to stand after sitting for two hours and sit after standing for
thirty minutes. (Id. at 332.) He can sit for a total of approximately two hours in an eight-hour
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day and stand or walk for less than that. (Id.) Every sixty minutes he needs to walk for five
minutes. (Id. at 333.) He needs to take an unscheduled ten-minute break four times during
the workday and needs to elevate his legs eight to ten inches every hour. (Id.) He can
frequently lift and carry ten pounds, occasionally lift and carry twenty, and rarely lift and
carry fifty pounds. (Id.) He can rarely twist, occasionally climb stairs, and never stoop, bend,
crouch, squat, or climb ladders. (Id. at 334.) He does not have any significant limitations
with reaching, handling, or fingering. (Id.) Because of his impairments, he will be absent
from work more than four days a month. (Id.)
Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is
"unable to engage in any substantial activity by reason of any medically determinable physical
or mental impairment," which must last for a continuous period of at least twelve months or
be expected to result in death. 42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A). Not only the
impairment, but the inability to work caused by the impairment must last, or be expected to
last, not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002).
Additionally, the impairment suffered must be "of such severity that [the claimant] 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, regardless of whether . . . a specific job vacancy exists for him, or whether he
would be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

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"The Commissioner has established a five-step 'sequential evaluation process' for
determining whether an individual is disabled.'" Phillips v. Colvin, 721 F.3d 623, 625 (8th
Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§§ 404.1520(a) and § 416.920 (a)). "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). First, the claimant cannot be presently engaged in "substantial gainful activity." See
20 C.F.R. §§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must
have a severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c). A"severe impairment"
is "any impairment or combination of impairments which significantly limits [claimant's]
physical or mental ability to do basic work activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. If the
claimant meets these requirements, he is presumed to be disabled and is entitled to benefits.
Bowen v. City of New York, 476 U.S. 467, 471 (1986); Warren v. Shalala, 29 F.3d 1287,
1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). "[A]n RFC determination must be based on a claimant's ability 'to perform the
requisite physical acts day in and day out, in the sometimes competitive and stressful
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conditions in which real people work in the real world.'" McCoy v. Astrue, 648 F.3d 605,
617 (8th Cir. 2011) (quoting Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)).
Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's own description
of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
"'Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires the ALJ consider
"'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the pain; [3]
precipitating and aggravating factors; [4] dosage, effectiveness and side effects of
medication; [5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)). "'The credibility of a claimant's subjective testimony is primarily for
the ALJ to decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After
considering the Polaski 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. Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008); Singh v. Apfel, 222 F.3d
448, 452 (8th Cir. 2000).
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), 416.920(e). The burden at step
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four remains with the claimant to prove his RFC and establish he cannot return to his past
relevant work. Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th
Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If, as in the instant case, 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 the claimant maintains the RFC to perform a significant number of jobs within the
national economy. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v.
Massanari, 258 F.3d 820, 824 (8th Cir. 2001).

See also 20 C.F.R. §§ 404.1520(f),

416.920(f). The Commissioner may meet her burden by eliciting testimony by a VE,
Pearsall, 274 F.3d at 1219, based on hypothetical questions that "'set forth impairments
supported by substantial evidence on the record and accepted as true and capture the concrete
consequences of those impairments,'" Jones v. Astrue, 619 F.3d 963, 972 (8th Cir. 2010)
(quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th Cir. 2007)).
If the claimant is prevented by his impairment from doing any other work, the ALJ
will find the claimant to be disabled.
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 v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
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v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). 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. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The
Court may not reverse that decision merely because substantial evidence would also support
an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730.
Discussion
Plaintiff argues that (1) the adverse decision is against the weight of the evidence,
including that before the Appeals Council, and (2) the ALJ erred (a) in determining his RFC
and (b) addressing the issue of his failure to follow prescribed treatment without first finding
him disabled.
The Record as a Whole. "An application for disability benefits remains in effect only
until the issuance of a 'hearing decision' on that application." Myers v. Colvin, 721 F.3d 521,
526 (8th Cir. 2013) (citing 20 C.F.R. §§ 404.620(a), 416.330). New evidence submitted to
the Appeals Council is considered only to the extent it "relates to the period on or before the
date of the [ALJ's] hearing decision." 20 C.F.R. §§ 404.970(b), 416.1470(b). When that
decision is challenged in a § 405(g) action, the Court determines whether the decision is
"supported by substantial evidence on the record as a whole, including the new evidence."
Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007). "'To be new, evidence must be more
than merely cumulative of other evidence in the record.'" Perks v. Astrue, 687 F.3d 1086,
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1093 (8th Cir. 2012) (quoting Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000)).
And, although "[t]he Appeals Council's failure to consider [new, material] evidence may be
the basis for a remand," Whitney v. Astrue, 668 F.3d 1004, 1006 (8th Cir. 2012), the Appeals
Council "is not expressly required by the regulations to state its rationale for denying review,"
Riggins v. Apfel, 76 F.Supp.2d 707, 709 (W.D. Mo. 1999).
In the instant case, the Appeals Council stated that it had considered new evidence and
identified that evidence by source and dates. Cf. Lamp v. Astrue, 531 F.3d 629, 632-33 (8th
Cir. 2008) (remanding case in which it could not be discerned whether the Appeals Council
considered only one letter in a particular exhibit or two). The question then is whether after
considering the new evidence relating to the period before the ALJ's decision of February 21,
2013, there is substantial evidence on the record as a whole to support that decision. There
is.
When applying for DIB and SSI, Plaintiff cited plates in his legs, pins in his ankle,
cracked vertebrae, and spinal problems as his disabling conditions. Before the ALJ's decision,
he sought medical treatment in 2007 and 2008 for back and leg pain and in 2012 for
abdominal pain. He was diagnosed then with acute colitis. The records before the Appeals
Council are for treatment in March 2013 for a gash in his head, in April 2013 for episodes of
syncope, and in June 2013 for neck, low back, and right leg pain. Only these last records
relate to impairments – back and leg pain – that were at issue before the ALJ's adverse
decision. These records, however, are not persuasive for the same reasons cited by the ALJ
when discussing Plaintiff's back and leg pain. For instance, Dr. Hunt clearly relied on
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Plaintiff's description of his pain and its limiting consequences; however, Plaintiff's
descriptions were found not to be credible. See Cline v. Colvin, 771 F.3d 1098, 1104 (8th
Cir. 2014) (finding it proper for the Commissioner to discount physician's opinion about
claimant's RFC when conclusions were based on claimant's "discredited subjective
complaints). Plaintiff complained to Dr. Hunt of disabling pain, but was taking only over-thecounter medications – a factor the ALJ considered as detracting from his credibility. See
Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir. 1994) ("A lack of strong pain medication is
inconsistent with subjective complaints of disabling pain."); Rankin v. Apfel, 195 F.3d 427,
429 (8th Cir. 1999) (finding that infrequent use of prescription medication supported
conclusion that subjective complaints were not credible). Also, as did the record before the
ALJ, the records submitted to the Appeals Council reflect a continuing failure by Plaintiff to
seek medical treatment. This failure is inconsistent with disability.9 Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995). See also Spradling v. Chater, 126 F.3d 1072, 1075 (8th Cir.
1997) (finding that claimant's failure to seek more aggressive treatment for complaints of
disabling pain detracted from credibility).
Plaintiff contends that Dr. Boyd-Taylor's extensive list of diagnoses, see page 17,
supra, support an inference her RFC opinion was based on her review of the record and
requires a remand for the ALJ to properly weigh that opinion. "The ALJ has an 'independent
duty to develop the record' and is required 'to seek additional clarifying statements from a

Plaintiff's argument that the ALJ erred when considering his failure to seek medical
treatment is addressed below.
9

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treating physician' when 'a crucial issue is undeveloped.'" Cline, 771 F.3d at 1105 (quoting
Goff, 421 F.3d at 791). A crucial issue has not been undeveloped. See Martise v. Astrue,
641 F.3d 909, 926-27 (8th Cir. 2011) ("[A] lack of medical evidence to support a doctor's
opinion does not equate to underdevelopment of the record as to a claimant's disability[.]")
The record includes two treatment notes from Dr. Boyd-Taylor – one before the alleged
disability onset date and one nine months later for a condition unrelated to those at issue. The
record also includes six Pain Assessment forms completed by Plaintiff. Four of these forms
are not accompanied by any treatment notes. And, Dr. Boyd-Taylor's list of diagnoses include
conditions which are not supported by any record she allegedly reviewed. For instance, Dr.
Boyd-Taylor listed a depressive disorder; there is no diagnosis of or treatment for such a
disorder. Similarly, her inclusion of chronic cephalalgia and GERD on her list is unsupported
by the record.10 Moreover, a diagnosis in and of itself does not meet the criteria for listinglevel severity. 20 C.F.R. §§ 404.1525(d); 416.925(d). See also Lott v. Colvin, 772 F.3d 546,
549 (8th Cir. 2014) ("[M]erely being diagnosed with a condition named in a listing and
meeting some of the criteria will not qualify a claimant for presumptive disability under the
listing.") (internal quotations omitted).
RFC. Plaintiff next contends that the ALJ erred when assessing his RFC by improperly
rejecting some of Dr. Morris' opinions while accepting others. Had the ALJ properly

The Court notes that Plaintiff did seek medical care in May 2012 for abdominal pain. The
pain was found to be caused by acute colitis.
10

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considered those opinions, he would have concluded that Plaintiff cannot perform even
sedentary work.
"Because a claimant's RFC is a medical question, an ALJ's assessment of it must be
supported by some medical evidence of the claimant's ability to function in the workplace.
Even though the RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner." Perks, 687 F.3d at 1092
(internal quotations omitted).
As noted by Plaintiff, the ALJ incorporated in his RFC findings some of the limitations
found by Dr. Morris after evaluating Plaintiff in October 2012, but not others. For instance,
Dr. Morris found that Plaintiff cannot operate a motor vehicle. The ALJ included this
limitation in his RFC. Dr. Morris found that Plaintiff should not balance, stoop, kneel,
crouch, or crawl. The ALJ did not include these limitations in his RFC. Such inconsistent
treatment, Plaintiff argues, fatally undermines the ALJ's RFC findings.
"[T]he 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. (8th
Cir. 2011) (internal quotations omitted) (second alteration in original). As noted above, when
determining a claimant's RFC, the ALJ must first evaluate his credibility. Tellez v. Barnhart,
403 F.3d 953, 957 (8th Cir. 2005). The ALJ found Plaintiff not to be entirely credible, a
finding Plaintiff does not challenge. This finding undermines the limitations Plaintiff argues
should have been incorporated in his RFC. For instance, Dr. Morris observed Plaintiff
walking with a limp and without a cane for fifty feet. His conclusion then that Plaintiff
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cannot walk a block at a reasonable pace on uneven or rough surfaces is dependent on
Plaintiff's subjective complaints. Plaintiff contends that Dr. Morris' findings that he cannot
stoop, balance, kneel, or crawl are not dependent on his credibility, but are supported by
objective evidence of atrophy in his right thigh and calf. The record reflects that Plaintiff was
shot in that leg twenty-two years earlier, had no atrophy in May 2011, and in October 2012
had 2 percent atrophy in his right thigh and 2.7 percent atrophy in his right calf. These
objective findings do not support his claim of error.
Failure to Follow Prescribed Treatment. In his final argument, citing Social Security
Ruling 82-59, Plaintiff contends that the ALJ erred by considering his failure to follow
prescribed treatment without first finding him disabled. The introduction to that Ruling reads:
"Individuals with a disabling impairment which is amenable to treatment that could be
expected to restore their ability to work most follow the prescribed treatment to be found
under a disability, unless there is justifiable cause for the failure to follow such treatment."
Social Security Ruling 82-59, 1982 WL 31384, *1 (S.S.A. 1982) (emphasis added).
Justifiable cause may include the inability to afford prescribed treatment the claimant is
willing to accept, "for which free community resources are unavailable." Id. at *4.
In the instant case, however, the ALJ considered Plaintiff's failure to follow prescribed
treatment or, indeed, to obtain any treatment or medication as relevant to the question of his
credibility and the seriousness of his conditions. This is a proper consideration. See
Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014) ("While not dispositive, a failure to
seek treatment may indicate the relative seriousness of a medical problem.") (internal
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quotations omitted) (finding ALJ had not erred by considering pro se claimant's "relative lack
of medical care, including his failure to seek care from 'charity providers,' as relevant,
considering [claimant's] allegations of 'unbearable back pain for the last two years'") (internal
quotations omitted); Goff, 421 F.3d at 793 (finding claimant's failure to take pain medication
relevant to issue of credibility when there was no evidence she was ever denied medical
treatment due to financial reasons).
The only evidence of Plaintiff ever seeking low or no cost medical care is his testimony
that he called a clinic and was told there would be a $25 co-pay, that he could not afford. He
had not, however, contacted any other clinics or social service agencies seeking low or no cost
medical care. And, when he did have Medicaid, he continued not to seek medical treatment
until he went to an emergency room seven months later for an unrelated injury. See Riggins
v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (rejecting claimant's challenge to ALJ's
consideration that claimant had not taken any prescription pain medication for years; although
claimant stated he could not afford such medication, there was no evidence he had sought
treatment offered to indigents or chose to forego smoking cigarettes to finance medication).
For the forgoing reasons, Plaintiff's third argument is without merit.
Conclusion
Considering all the evidence in the record, including the evidence before the Appeals
Council, the Court finds that there is substantial evidence to support the ALJ's decision. "If
substantial evidence supports the ALJ's decision, [the Court] [should] not reverse the decision
merely because substantial evidence would have also supported a contrary outcome, or
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because [the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959,
964 (8th Cir. 2010). Therefore,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and this case is DISMISSED.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 18th day of December, 2014.

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