Moore v. Colvin
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 8/19/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ARTHUR S. MOORE,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 4:14-CV-674-CEJ
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
On April 12, 2011, plaintiff Arthur S. Moore filed an application for disability
insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of
October 10, 2009.
(Tr. 120–21, 137)
After plaintiff’s application was denied on
initial consideration (Tr. 60–63), he requested a hearing from an Administrative
Law Judge (ALJ).
March 14, 2013.
Plaintiff and counsel appeared for a hearing on
The ALJ issued a decision denying plaintiff’s
application on March 28, 2013. (Tr. 9–22) Plaintiff requested the Appeals Council
reverse the ALJ’s decision and remand for a new hearing.
Council denied plaintiff’s request for review on February 27, 2014.
Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
Evidence Before the ALJ
A. Disability Application Documents
In a document dated April 13, 2011, plaintiff stated that he was married and
had no dependents.
He last worked on October 10, 2009, when he
claims to have been fired “because of [his] condition.” (Tr. 121, 137)
In his Disability Report (Tr. 131–36), plaintiff listed his disabling conditions
as gout, lower back pain, and high blood pressure. (Tr. 132) Plaintiff stated his
gout “flares up at times,” but admitted the condition “comes and goes.” (Tr. 136)
He reported taking only over-the-counter Advil for pain, and aspirin as a blood
thinner. (Tr. 134) Plaintiff graduated from high school, where he never attended
any special education classes; he did not allege any mental impairment. (Tr. 132–
33) He can understand, read, and write English. (Tr. 131)
Plaintiff worked as a housekeeper (i.e., a custodian) at a hospital from 1974
until October 2009 (Tr. 133). This was his only past relevant work experience. As
a housekeeper, his primary duties included stripping floors, disposing of refuse,
making beds for patients, and setting up for meetings.
He used machines,
tools, and various pieces of equipment to perform those duties. Id. On a typical
day his job required him to walk or stand for up to six hours. (Tr. 134) He was
also required to climb, crawl, crouch, kneel, and stoop.
The position also
entailed lifting refuse bags weighing up to 20 pounds with some regularity, and
plaintiff sometimes lifted “heavy boxes” weighing 100 pounds “or more.” Id. In
fact, he “frequently” lifted objects weighing up to 25 pounds. Id.
In a Function Report (Tr. 145–52), plaintiff stated that he lived with his
mother and other relatives. (Tr. 145) Plaintiff complained that his gout prevents
him from performing some activities, though he did not specify what he is unable to
do. (Tr. 145)
According to plaintiff, gout affects his hands, wrists, knees, and foot. Id. He
additionally suffers from lower-lumbar back pain. Id. The pain disrupts his sleep
and makes it challenging for plaintiff to dress, groom, or feed himself. (Tr. 147)
Plaintiff also has difficulty getting up from a seated position if he sits for an
extended period. (Tr. 149) Additionally, he claimed to be able to walk for only five
or ten minutes at a time without needing to rest for “a while.”
Nevertheless, plaintiff reported being able to drive a car when his gout subsides.
He also admitted going outdoors “all the time.”
claimed that he was prescribed crutches to ambulate (Tr. 151), he could not recall
when they were prescribed, id., and no medical records support that statement. He
also claimed to require a cane to ambulate every day. Id.
In a Missouri Supplemental Questionnaire completed on May 3, 2011 (Tr.
153–56), plaintiff asserted that he had not sought medical treatment for his
conditions because he lacks insurance.
However, no records indicate
that plaintiff ever sought to access free or reduced-price medical services for his
conditions. Plaintiff also reported taking Aleve for pain. Id.
Finally, in a Disability Report Appeal filed on January 27, 2012, plaintiff
recalled seeking treatment for “gout, high and low blood pressure, arthritis pain and
swelling” in December of 2011.
He reported taking four prescription
medications for those conditions: Allopurinol,1 Carvedilol,2 Colcrys,3 and Norvasc.4
Error! Main Document Only.“Allopurinol is used to treat gout, high levels of uric acid in the body
caused by certain cancer medications, and kidney stones.”
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682673.html (last visited Apr. 29, 2015).
Plaintiff claimed to “suffer from pain and swelling[,] which limit all
activities.” (Tr. 160) He elaborated that he suffers from constant lower back pain,
as well as knee pain and swelling. (Tr. 159) He claimed that his right hand swells
to such a degree that it affects his grip, and it is “very painful for him to walk and
stand.” (Tr. 160)
B. Testimony at the Hearing
Plaintiff and his attorney attended the administrative hearing on March 14,
2013. (Tr. 28-49)
Plaintiff was then 55 years old.
He testified that he was
homeless and that he alternated between staying with his sister and his mother.
Plaintiff was not working and that his only sources of income were “food stamps”
and “a little retirement check.” (Tr. 31) He admitted that he had applied for and
received unemployment benefits after he was fired from his last job on October 10,
2009. (Tr. 31–32)
Plaintiff testified that on a typical day he wakes up, takes his medication,
drinks some water, and may make a sandwich for breakfast. (Tr. 35–36) He then
calls relatives or friends for transportation. Id. Though plaintiff occasionally drives
a car, he stated that he did not own a vehicle.
According to plaintiff’s
testimony, much of his day is spent walking and taking breaks to sit down. (Tr. 35)
His travels include frequent visits to local parks.
He returns to his
Error! Main Document Only.Carvedilol is used to treat heart failure and high blood pressure.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697042.html (last visited Apr. 30, 2015).
Error! Main Document Only.Colcrys is a prescription medicine used to “prevent and treat gout
flares in adults.” http://www.fda.gov/downloads/Drugs/DrugSafety/UCM176363.pdf (last visited Apr.
Error! Main Document Only.Norvasc is indicated for the treatment of hypertension and coronary
artery disease. See Phys. Desk Ref. 2546 (61st ed. 2007).
mother’s or sister’s home in the early afternoon, eats a snack, and watches
Plaintiff’s sister shops for him and does his laundry. (Tr. 39, 40) His mother
provides him dinner.
He bathes infrequently because he has no fixed
residence, but his impairments do not prevent him from bathing himself when he
has the opportunity to do so. (Tr. 38) He typically goes to bed at 7:00 or 8:00 at
Plaintiff complained of gout at the hearing. (Tr. 34) He testified to back and
ankle pain so severe that he cannot work. The pain keeps him “up all the time” and
interferes with his sleep, and his ankles sometimes swell. (Tr. 33)
cannot walk for more than two or three blocks without becoming winded, though he
admitted that he has no medical condition that affects his breathing. (Tr. 40) He
testified that he was unable to stand for more than fifteen to twenty minutes,
depending on his pain level. Id. At the hearing he ambulated using a cane that
had not been prescribed for him, but that he had purchased on his own. (Tr. 32)
Despite gout pain, plaintiff stated that he has no difficulty using his hands.
(Tr. 40) In fact, plaintiff asserted that as a housekeeper he sometimes lifted up to
25 pounds, which conflicted with his assertions of greater strength in his disability
(Tr. 33, 134)
He also stated that he can stoop, kneel,
crouch, and crawl; but it is difficult for him to return to a standing position if he
does so. (Tr. 40)
Plaintiff also reported that he cannot sit for more than twenty or thirty
minutes before he must stand up and walk around.
He claimed to
experience pain at night when he tries to sleep if he is not on medication. (Tr. 38)
Even without medication, plaintiff slept a total of eight hours a night; however, he
sometimes woke up and watched television for several hours before returning to
bed. (Tr. 39)
Plaintiff reported seeing a physician for his condition only every three to four
months. (Tr. 34)
In addition to taking Allopurinol for his gout (Tr. 34), plaintiff
reported taking Gabapentin5 (i.e., Neurontin) daily for pain.
recalled that the medications he takes have not always been effective, but he could
not describe specific instances in which the medications had been ineffective. (Tr.
34) Plaintiff was also unable to describe to what extent his medications alleviate
his symptoms. (Tr. 38–39) Finally, plaintiff admitted that his pain is not constant;
on certain days he experiences pain, while on others he feels “real good.” (Tr. 44–
Michelle Peters-Pagella, a vocational expert, provided testimony regarding
the employment opportunities for an individual of plaintiff’s age, education, and
past relevant work experience who retains the residual functional capacity (RFC) to
perform medium work but is limited in the following ways: (1) the person cannot
use ladders, ropes, or scaffolds, and must avoid all exposure to unprotected heights
and (2) the person can only occasionally use ramps and stairs, kneel, crouch, or
crawl. (Tr. 46) With those limitations, the vocational expert testified that such a
person could still perform plaintiff’s past relevant work as a housekeeper, which is
medium work. Id.
Error! Main Document Only.Gabapentin is used to help control seizures, to relieve the pain of
postherpetic neuralgia, and restless leg syndrome. http://www.nlm.nih.gov/medlineplus/druginfo
/meds/a694007.html (last visited Apr. 29, 2015).
The vocational expert also testified that with that RFC such a person could
work in other jobs that exist in significant numbers in the national economy. (Tr.
46–47) Peters-Pagella stated that examples of such jobs would include working as
an assembler, a hand packager, or a sorter. Id. Plaintiff’s counsel then asked the
vocational expert if her opinion would change if the person were limited to only
standing and walking for two hours out of an eight-hour workday. (Tr. 48) The
vocational expert testified that such a person would not be able to work as a
housekeeper or in any of the exemplar occupations the she had identified. Id.
C. Medical Records
1. Pre-Application Records
Scant medical records exist from before plaintiff filed his application for
On February 5, 2009, Dr. Richard Ihnat examined plaintiff.
Dr. Ihnat diagnosed plaintiff with gout and prescribed Allopurinol for the condition,
with orders to return for a follow-up visit in four months. Id. Plaintiff’s uric acid
level was tested on March 29, 2009; the results showed a uric acid level of 3.0,
while the normal range is 3.5–8.5. (Tr. 197) Plaintiff was scheduled for a follow-up
appointment with Dr. Ihnat on June 10, 2009, but he did not appear for that
appointment. (Tr. 188)
On July 27, 2009, plaintiff was again examined by Dr. Ihnat. Id. During the
examination, plaintiff reported pain in his right wrist and elbow.
noted that plaintiff’s right wrist was not tender.
Moreover, plaintiff’s “urate
levels [were] low enough that his flares shouldn’t be gout,” according to Dr. Ihnat.
The physician assessed plaintiff’s arm pains as “tendonitis[,] since the urate
[level] was only 3.” Id. Dr. Ihnat suggested that plaintiff use a prescription elbow
brace for tennis elbow. Id.
Plaintiff reduced his weight from 190 pounds on February 5 to 185 pounds on
July 27. Id. Dr. Ihnat recommended aerobic exercise for plaintiff’s hypertension.
(Tr. 189) Plaintiff was also given a handout recommending that he adopt a lowsodium diet, and he was told to return for a follow-up appointment in four months.
(Tr. 186–87, 189) No records indicate he returned for a follow-up appointment.
2. Post-Application Records
On September 1, 2011, Dr. Alan Morris examined plaintiff.
Plaintiff walked into the office for his examination with a cane held in his right
hand; he was unassisted. (Tr. 205)
He claimed to suffer from intermittent pain
and swelling in both wrists and both knees. (Tr. 204) He estimated that his gout
flares up once per week. Id. However, Dr. Morris reported that, “Despite the fact
that he states that he has pain and swelling of the right wrist today, he
demonstrates in the office that he uses the cane in his right hand and [when]
getting out of the chair, he pushes down firmly on the cane with his right hand and
Plaintiff also complained of lower back pain in the mid-lumbar area, which he
claimed was “constant” for the last year. Id. Despite that, plaintiff recalled taking
Advil for pain only “occasionally” and having sought no treatment or evaluation for
his alleged lower back condition. (Tr. 204–05) He also reported that he had not
taken any prescription medications for at least a year before Dr. Morris examined
him. (Tr. 205) Yet, he alleged that his pain was so great that he could only sit for
twenty minutes, stand for twenty minutes, walk for ten minutes, and lift just eight
pounds. Id. Due to the alleged pain, he reported only sleeping between four and
five hours per night. Id.
As the examination progressed, Dr. Morris asked plaintiff to walk fifty feet
down a hallway to assess his gait. Id. Plaintiff held his cane in his right hand and
walked ten feet down the hallway before he fell to the floor “with a soft landing on
his right knee.” Id. He was assisted to stand up, at which point he was unable to
toe walk, heel walk, tandem gait, or squat. Id. He claimed to be unable to get on
and off of the examination table. Id. After the examination concluded, plaintiff was
observed walking without a cane out of the office for a distance of over fifty feet;
he did not fall down. (Tr. 206) He was also observed walking unassisted out of the
elevator on the main floor of the building where the examination occurred. Id.
Plaintiff was able to undress himself for the examination, but he claimed to
need assistance dressing, which he received from the friend who brought him to the
examination. (Tr. 205) Dr. Morris assessed plaintiff’s grip strength and noted that
his grip was a five out of five on his left hand and that, “[i]nitially, grip on the right
hand was 4/5, but then [plaintiff] quickly loosened his grip to a 2/5.” (Tr. 205–06)
Plaintiff’s range of motion was equal and within normal limits in both of his wrists,
though plaintiff resisted movement and complained of pain in his right wrist. (Tr.
206) Dr. Morris noted no atrophy of either of plaintiff’s hands. Id.
Dr. Morris concluded that plaintiff’s clinical impressions include a “history of
gout, although current uric acid level is even below [the] normal level.” Id. In Dr.
Morris’s opinion, plaintiff’s “physical examination [was] non-physiologic.” (Tr. 207)
Dr. Morris reported that in an eight-hour workday, plaintiff could stand or walk with
normal breaks for at least two hours. (Tr. 208)
Dr. David Richards first examined plaintiff on December 20, 2011. (Tr. 231–
Plaintiff complained of a history of gout, but, contrary to what he told Dr.
Morris, he reported that his “last attack was over one year ago.” (Tr. 240) Lab test
results revealed plaintiff’s uric acid level was 8.8. (Tr. 233) Dr. Richards concluded
that plaintiff suffers from “benign essential hypertension” and “gout, unspecified.”
Upon discovering that plaintiff’s kidney functions were normal, Dr.
Richards instructed plaintiff to begin taking Colcrys daily, with a prescription for
Allopurinol to begin three weeks after the date of the examination. Dr. Richards
also prescribed Amlodipine Besylate (i.e., Norvasc) and Carvedilol. (Tr. 239, 241)
Plaintiff was again examined by Dr. Richards on August 20, 2012. (Tr. 245)
At that time, plaintiff reported “no gout flares” and “no ER visits” since his last
examination eight months prior. Id. Yet, plaintiff complained of constant pain in
both knees and ankles and in his right elbow and lower back.
noted that plaintiff’s elbows and knees were tender, and he was experiencing mildto-moderate pain with motion of his elbows, knees, and feet. (Tr. 246) However,
Dr. Richards observed no tophi6 on plaintiff’s body.
Lisinopril7 to manage plaintiff’s high blood pressure.
Dr. Richards prescribed
concluded that it was “unlikely for gout to be [the] source of pain in all [of
plaintiff’s] painful joints.” (Tr. 246–47)
On November 16, 2012, plaintiff was seen by Dr. Richards a third time. (Tr.
258) Dr. Richards noted that plaintiff was previously referred for an x-ray of his
Error! Main Document Only.“Uric acid deposits called tophi develop in cartilage tissue, tendons,
and soft tissues. These tophi usually develop only after a patient has suffered from [gout] for many
years.” http://www.nlm.nih.gov/medlineplus/ency/imagepages/19833.htm (last visited Apr. 30,
Error! Main Document Only.Lisinopril is indicated for the treatment of hypertension. See Phys.
Desk Ref. 2053 (61st ed. 2007).
spine, but his missed that appointment and never rescheduled. Id. Plaintiff was
given a prescription for iron to treat anemia (Tr. 264), and Dr. Richards prescribed
Losartan8 potassium in place of Lisinopril to treat plaintiff’s high blood pressure.
Follow-up x-rays were “all normal except for a very small amount of
arthritis.” (Tr. 265)
During the November 16 examination, plaintiff reported having not taken any
of his prescribed medications since August 2012 because they had been thrown
away by third parties when he moved accommodations. (Tr. 258) Lab test results
the next day revealed that plaintiff’s uric acid level was 9.8. (Tr. 249) Yet, despite
that high acid level and not taking any medication for gout or his other conditions,
plaintiff reported to Dr. Richards that he had experienced “no gout flares since [his]
last visit [and] no ER visits.” (Tr. 258) Plaintiff was noted to have tenderness and
pain in both knees and elbows. (Tr. 259)
Dr. Jesse Poblete performed a radiology consultation on plaintiff on
December 19, 2012.
Dr. Poblete’s examination found minimal
degenerative joint disease of the right and left knees without evidence of fractures,
dislocation, or other significant bony pathology.
There were also minimal
degenerative changes in the right and left ankles and elbows. (Tr. 273–76)
Dr. Richards examined plaintiff a final time on January 25, 2013. (Tr. 268)
The results of plaintiff’s December x-rays “did not show any worrisome findings,”
according to Dr. Richards. Id. Plaintiff was noted to again have refused a lowerspine x-ray. Id. In addition, Dr. Richards noted that plaintiff “was sent a letter and
Error! Main Document Only.“Losartan is used alone or in combination with other medications to
treat high blood pressure.” http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695008.html (last
visited Apr. 30, 2015).
told to come back to [the] lab 3 weeks after increasing Allopurinol to 200 mg, but
he did not.” Id. Plaintiff never filled his prescription for iron to treat anemia. Id.
D. CDI Investigation
The Social Security Administration’s Cooperative Disability Investigations Unit
(CDI) conducted an inquiry regarding plaintiff’s claims. The CDI investigative team
observed plaintiff changing the oil on a car registered to him with no apparent
difficulty. (Tr. 57, 213) He was observed walking with a normal gait until he saw
the CDI team, at which point he began walking with a limp and moved his right
hand to the lower right side of his back.
Despite his claim that he is
homeless, plaintiff was observed using a key to enter a residence. Id.
Upon questioning by the CDI team, plaintiff stated that he could not lift
anything. Id. Just minutes earlier, however, he had been observed lifting a plastic
bottle of oil while performing the oil change. Id. Plaintiff complained to the CDI
team that he could not stand any longer, but he sat on the living room floor instead
of on a nearby couch. Id. After resting on the floor for just twelve minutes, he
stood back up and continued to walk around, never placing his hand on his lower
back for support again. Id. As in his face-to-face interview with the Social Security
Administration, plaintiff did not use a cane to ambulate while he was under
surveillance by the CDI team. (Tr. 57, 129)
The ALJ’s Decision
In the decision issued on March 28, 2013, the ALJ made the following
Plaintiff meets the insured status requirements of the Social Security
Act through December 31, 2014.
Plaintiff has not engaged in substantial gainful activity since October
10, 2009, the alleged onset date.
Plaintiff has the following severe impairments: gout and obesity.
Plaintiff has the following non-severe impairments: degenerative disk
disease (i.e., back pain), hypertension, joint arthralgias, anemia, and
Plaintiff does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the RFC to perform medium work as defined in 20 C.F.R. §
ladders/ropes/scaffolds; must avoid all exposure to unprotected
heights; can balance and stoop frequently; can occasionally climb
ramps or stairs; and can occasionally crouch, kneel, and crawl.
Plaintiff is capable of performing past relevant work as a housekeeper.
This work does not require the performance of work-related activities
precluded by plaintiff’s RFC.
Plaintiff was born on May 17, 1956 and was 53 years old, which is
defined as an individual closely approaching advanced age, on the
alleged disability onset date. He subsequently changed age categories
to advanced age.
Plaintiff has at least a high school education and is able to
communicate in English.
Transferability of job skills is not material to the determination of
disability because plaintiff’s past relevant work is unskilled.
Considering plaintiff’s age, education, work experience, and RFC, there
would be a significant number of other jobs in the national economy
that plaintiff could perform.
Plaintiff has not been disabled within the meaning of the Social
Security Act at any time from October 10, 2009 through the date of
the ALJ’s decision.
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).
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).
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
“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.
APrior 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
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
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
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.
At step four, the ALJ determines whether the 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
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.
To be entitled to disability benefits under Title II, plaintiff has the burden of
showing he was disabled prior to December 31, 2014, the date he was last insured.
Jenkins v. Colvin, No. 2:12-CV-91-JAR, 2014 WL 1259771, at *2 (E.D. Mo. Mar. 26,
2014); see also 20 C.F.R. § 404.130; Moore, 572 F.3d at 522; Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir. 2006). “Evidence from outside the insured period can be
used in ‘helping to elucidate a medical condition during the time for which benefits
might be rewarded.’” Cox, 471 F.3d at 907 (quoting Pyland v. Apfel, 149 F.3d 873,
876 (8th Cir. 1998). However, to be entitled to benefits, plaintiff must prove he
was disabled before his insurance expired. Id.
Plaintiff presents two questions for review:
(A) Did the ALJ err when she
determined that plaintiff has the RFC to perform medium work? (B) Was the ALJ’s
hypothetical to the vocational expert improper, such that the vocational expert’s
opinion that plaintiff can return to his past relevant work did not constitute
A. Residual Functional Capacity
Plaintiff alleges that the ALJ committed three errors that undermine her
determination that he has the RFC to perform medium work: (1) the ALJ improperly
construed plaintiff’s post-onset application for unemployment benefits as an
admission that he has the capacity to work; (2) the ALJ erroneously interpreted
plaintiff’s ability to perform certain activities of daily living as indicative of his
capacity to perform medium work; and (3) the ALJ failed to cite any medical or
other evidence that would reasonably lead to the conclusion that plaintiff is capable
of medium work.
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
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).
1. Unemployment Benefits
Among the reasons the ALJ found plaintiff lacked credibility was his
admission that he applied for and received unemployment benefits after October
10, 2009, the alleged onset date.
“Acts which are inconsistent with a
claimant’s assertion of disability reflect negatively upon that claimant’s credibility.”
Johnson v. Apfel, 240 F.3d at 1148. “[T]he acceptance of unemployment benefits,
which entails an assertion of the ability to work, is facially inconsistent with a claim
of disability.” Cox v. Apfel, 160 F.3d 1203, 1208 (8th Cir. 1998). “A claimant may
admit an ability to work by applying for unemployment compensation benefits
because such an applicant must hold himself out as available, willing and able to
work.” Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991). “Because his
application necessarily indicates that [plaintiff] was able to work, this may be some
evidence, though not conclusive, to negate his claim that he was disabled . . . .”
Without citing any support for the proposition, plaintiff alleges that in
Missouri a person who applies for unemployment benefits only holds himself out as
capable of performing some work, not full-time work. The ALJ therefore erred, in
plaintiff’s view, when she considered plaintiff’s application for and receipt of
unemployment benefits as indicative that he could work full time and accordingly
found his claims less credible.
Because plaintiff bears the burden to prove his
disability, Cox, 495 F.3d at 619, he must support the assertions in his appeal of the
His failure to cite the Missouri law on which he relies
undermines his argument.
Moreover, Cox, 160 F.3d at 1208, and Jernigan, 948 F.2d at 1074, plainly
instruct that an ALJ is permitted to discount a claimant’s credibility both when he
applies for and when he receives unemployment benefits after his alleged onset
date. Therefore, the ALJ did not err when she considered plaintiff’s application for
unemployment benefits as one indicator that his disability claim is not credible.
2. Daily Activities
The ALJ determined plaintiff’s RFC in part based on his capacity to perform a
“fair amount” of activities of daily living, including daily taking medications,
preparing himself a sandwich, and visiting a park. (Tr. 18) The ALJ also noted that
plaintiff was capable of performing all of those activities despite “very conservative”
treatment for his alleged conditions (e.g., no physical therapy, surgery, pain
injections, or narcotic pain medication) and large gaps in treatment. Id.; see Clark
v. Chater, 75 F.3d 414, 417 (8th Cir. 1996) (an ALJ may discount subjective
complaints when the record as a whole reflects a history of infrequent medical
treatment); see also Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (“A
failure to follow a recommended course of treatment also weighs against a
claimant’s credibility.”). According to plaintiff, the ALJ erred by failing to articulate
how plaintiff’s ability to regularly perform those activities reasonably leads to the
conclusion that he is capable of performing medium work.
Plaintiff misreads the ALJ’s analysis.
In Polaski v. Heckler, 739 F.2d 1320
(8th Cir. 1984), the Eighth Circuit set forth factors an ALJ must consider in
evaluating the credibility of a plaintiff’s testimony and complaints, in addition to the
objective medical evidence. These factors include:
(1) the claimant’s daily activities; (2) the duration, intensity, and frequency
of 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.
Moore, 572 F.3d at 524 (citing Polaski, 739 F.2d at 1322). Moreover, a claimant’s
subjective complaints may be discounted if there are inconsistencies in the record
as a whole.
20 C.F.R. §§ 404.1529, 416.929; McKinney v. Apfel, 228 F.3d 860,
864 (8th Cir. 2000); Polaski, 739 F.2d at 1322.
Thus, while the extent of daily
living activities does not alone show an ability to work, such activities may be
considered along with other evidence when evaluating a claimant’s credibility. See
Carlock v. Sullivan, 902 F.2d 1342, 1343 (8th Cir. 1990); see also McCoy v. Astrue,
648 F.3d 605, 614 (8th Cir. 2011) (affirming an ALJ who appropriately considered
claimant’s activities of daily living); Steed v. Astrue, 524 F.3d 872, 876 (8th Cir.
The ALJ never stated that her conclusion that plaintiff is capable of medium
work was based solely on plaintiff’s reported daily activities. Rather, as Polaski and
its progeny require, his daily activities were properly considered with all other
factors. Thus, the ALJ did not err in considering plaintiff’s admission that he daily
takes medication, prepares a sandwich, and visits a park among her reasons for
concluding that plaintiff retains the capacity to perform medium work.
3. Medical and Other Evidence Supports the RFC
Finally, plaintiff contends the ALJ failed to cite any medical or other evidence
that reasonably leads to the conclusion that plaintiff has the RFC to perform
medium work. “Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R.
§ 416.967. In his disability application plaintiff reported that in his past relevant
work as a housekeeper required him to lift refuse bags weighing up to 20 pounds
with some regularity, and he sometimes lifted “heavy boxes” weighing 100 pounds
In fact, he “frequently” lifted objects weighing up to 25
Thus, the record before the ALJ was uncontested that plaintiff had
once been capable of performing, and he did perform, medium work. The ALJ then
considered the existence and severity of plaintiff’s symptoms to determine whether
he was presently capable of such performance, ultimately concluding that plaintiff
can still perform medium work. (Tr. 16–20)
To reach her conclusion that plaintiff can perform medium work, the ALJ first
found that plaintiff’s medically determinable impairments could reasonably be
expected to cause his alleged symptoms. (Tr. 17) Plaintiff alleges no error with
that determination. Second, however, in evaluating the intensity, persistence, and
limiting effects of plaintiff’s symptoms, the ALJ found that his symptoms were
minor, such that he could still perform medium work. (Tr. 17–20) Plaintiff alleges
the ALJ erred in evaluating the severity of his symptoms, claiming the ALJ did not
cite medical or other evidence that supports her conclusion.
As discussed above, in evaluating the severity of plaintiff’s symptoms and
making a credibility determination under the Polaski factors, the ALJ was obligated
to consider the objective medical evidence as well as:
(1) the claimant’s daily activities; (2) the duration, intensity, and frequency
of 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.
Moore, 572 F.3d at 524 (citing Polaski, 739 F.2d at 1322); 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)).
Contrary to plaintiff’s assertion, the ALJ considered, inter alia, the following
medical and other evidence to determine that plaintiff is capable of performing
medium work: Plaintiff was treated very conservatively for his conditions (e.g., no
physical therapy, surgery, pain injections, or narcotic pain medication). X-rays of
plaintiff’s joints showed minimal degenerative changes.
Plaintiff was able to
ambulate independently for over fifty feet after he left an examination, despite
claiming to be unable to do so in that examination. Plaintiff claimed to need a cane
to ambulate, but it was not prescribed to him. He intentionally loosened his grip
during an examination to appear weaker than he is. Plaintiff admitted that his gout
flares up only once per week.
Examination reports show that gout was not the
source of plaintiff’s pain. (Tr. 18–19) The ALJ also noted that while plaintiff alleged
disabling back pain, “no treatment or image evidence in the record . . . indicates
any back impairment.” (Tr. 19) Moreover, as discussed above, the ALJ cited other
evidence—i.e., plaintiff’s application for unemployment benefits after his alleged
onset date and his daily activities—to determine that plaintiff is capable of
performing medium work.
Thus, the ALJ cited substantial medical and
other evidence to support her conclusion that while plaintiff’s conditions cause his
symptoms, he has the RFC to perform medium work.
Relatedly, plaintiff takes issue with the fact that in determining plaintiff’s
RFC, the ALJ accorded Dr. Morris’s conclusion that plaintiff is only capable of
performing sedentary work “little or no weight.”
Dr. Morris examined
plaintiff (albeit only once) and he was thus a treating physician.
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.
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
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
§ 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).
As the ALJ explained, Dr. Morris’s opinion, based on a single examination,
that plaintiff is capable of performing only sedentary work is inconsistent with the
medical and other evidence.
(Tr. 18); see Goff, 421 F.3d at 790–91 (“[A]n
appropriate finding of inconsistency with other evidence alone is sufficient to
discount [an] opinion.”).
The ALJ also noted that Dr. Morris’s conclusion was
entitled to “little or no weight” because the form on which he offered that opinion is
skewed—it does not provide the physician with the option to select a medium
exertional capacity. Id. Thus the ALJ properly discounted Dr. Morris’s conclusion
when determining plaintiff’s RFC.
For the reasons just explained, moreover, and contrary to plaintiff’s
assertion, the ALJ did not rely solely on the opinion of a single decision maker,
Angela Ross, to determine that plaintiff is capable of performing medium work.
Rather, the ALJ cited substantial medical and other evidence to reach her
conclusion. Substantial medical and other evidence supports the ALJ’s conclusion
that plaintiff is capable of performing medium work, so the ALJ did not err in
determining plaintiff’s RFC.
B. Vocational Expert’s Hypothetical
Plaintiff also contends that the ALJ presented the vocational expert with a
hypothetical question that was improper in several respects, such that the expert’s
testimony regarding plaintiff’s ability to return to his past relevant work did not
constitute substantial evidence. “Testimony from a [vocational expert] based on a
properly-phrased hypothetical question constitutes substantial evidence.”
Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Cruze v. Chater, 85 F.3d 1320,
1323 (8th Cir. 1996). As the Eighth Circuit has explained:
A hypothetical question posed to the vocational expert is sufficient if it
sets forth impairments supported by substantial evidence in the record
and accepted as true by the ALJ. The hypothetical question must
capture the concrete consequences of the claimant’s deficiencies.
Likewise the ALJ may exclude any alleged impairments that she has
properly rejected as untrue or unsubstantiated.
Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001) (internal citations and
quotations omitted); see Heino v. Astrue, 578 F.3d 873, 882 (8th Cir. 2009) (“[A]
hypothetical question posed to a [vocational expert] need not include allegations
that the ALJ found not credible.” (citing Pertuis v. Apfel, 152 F.3d 1006, 1007 (8th
In his challenge to the hypothetical question and the expert’s testimony,
plaintiff contends (1) the ALJ made no explicit findings regarding the mental
demands of plaintiff’s past work and, thus, the hypothetical was incomplete; (2) the
ALJ did not compare the demands of plaintiff’s past relevant work to his current
exertional limits to develop a proper hypothetical; and (3) the ALJ improperly
determined that plaintiff could perform his past relevant work or other work in the
national economy, even though the vocational expert testified that if plaintiff were
limited to standing and walking for no more than two hours per day, as plaintiff
asserts, then he would be precluded from such work.9
1. Mental Demands
Plaintiff first contends that the ALJ’s failure to address his mental capacity in
her hypothetical renders the vocational expert’s testimony deficient. The plaintiff
bears the burden to prove inability to perform past relevant work.
F.3d at 1217 (citing 42 U.S.C. § 423(a)(1)(D), (d)(1)(A)). Moreover, an ALJ is not
required to “mechanically list and reject every possible limitation.”
F.3d at 615. Rather, “a hypothetical question posed to a [vocational expert] need
not include allegations that the ALJ found not credible.”
Heino, 578 F.3d at 882
(citing Pertuis, 152 F.3d at 1006).
Plaintiff reported in his disability application that he graduated from high
school, where he never attended any special education classes; he did not allege
any mental impairment. (Tr. 132–33)
The ALJ’s decision notes that plaintiff did
not assert any mental limitations and that there were no records of any such
Because the ALJ correctly assessed the RFC, see supra Part V.A., the Court does not address
plaintiff’s argument that the vocational expert’s responses are undermined by an incorrect RFC
limitations. (Tr. 16) The ALJ was not required to discuss limitations plaintiff never
alleged and that do not appear in any medical record when framing the hypothetical
posed to the vocational expert. See House v. Shalala, 34 F.3d 691, 694 (8th Cir.
1994) (observing that an ALJ is required to discuss only credible physical and
Thus, the ALJ did not err in failing to include unalleged
mental limitations in the hypothetical she posed to the vocational expert.
2. Exertional Limits
Second, plaintiff asserts that in framing the hypothetical, the ALJ failed to
compare on a function-by-function basis plaintiff’s present capabilities to the
demands of his past relevant work as a housekeeper. The Court disagrees.
As discussed above, the ALJ took great care to explain plaintiff’s purported
limitations and her reasons for discounting many of them.
extent that the ALJ found some of plaintiff’s gout symptoms affect his capacity to
work, she imposed limitations on his ability to perform medium work—e.g., limiting
him to climbing ramps and stairs occasionally—to account for those symptoms. (Tr.
And the ALJ incorporated those credible limitations into the hypothetical
she posed to the vocational expert. Id.
The ALJ also described plaintiff’s past relevant work as a housekeeper during
the colloquy with the vocational expert and in her decision. (Tr. 20, 45–46) And
both the ALJ and the vocational expert were aware of plaintiff’s self-reported duties
in that job and the duties and exertional limits of that position as it is typically
performed. (Tr. 45–46); see Wagner, 499 F.3d at 853; Barnett v. Barnhart, 362
F.3d 1020, 1023 n.3 (8th Cir. 2004); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir.
Therefore, the ALJ’s comparison of plaintiff’s RFC to the “physical and
mental demands of [his past] work” (Tr. 20), was sufficient.
Moreover, the ALJ alternatively inquired about other jobs available to
someone of plaintiff’s age, education, work experience, and RFC.
vocational expert testified that a person matching the ALJ’s description could
perform jobs as, inter alia, an assembler, a hand packager, and a sorter.
Because the ALJ then found that plaintiff could return to his past position or work in
one of those other positions, even if the ALJ’s finding that plaintiff could resume
work as a housekeeper was error, it is not reversible error.
3. Walking and Standing
Lastly, plaintiff contends that the ALJ erred when she found him capable of
returning to his past work because the vocational expert opined that plaintiff would
not be capable of working as a housekeeper if he were limited to standing and
walking for no more than two hours per day.
But the ALJ was only
required to consider plaintiff’s ability to work based on his credible limitations, not
every limitation he or his counsel asserted.
Howe v. Astrue, 499 F.3d 835, 842
(8th Cir. 2007) (“A hypothetical question . . . need only include impairments that
are supported by the record and that the ALJ accepts as valid.”); Lacroix, 465 F.3d
at 889; Prosch v. Apfel, 201 F.3d 1010, 1015 (8th Cir. 2000); see also Jackson v.
Apfel, 162 F.3d 533, 538 (8th Cir. 1998) (observing that the ALJ’s hypothetical may
omit even non-severe impairments).
The ALJ found substantial evidence to suggest that plaintiff’s allegation that
he has difficulty walking was not credible—e.g., he used a cane during an
examination and was then seen walking normally without it when he thought he
was free from observation. (Tr. 17–19) In fact, no evidence was presented that
plaintiff is limited to standing and walking for only two hours per day.
Morris opined that plaintiff has any limitation on standing and walking, which Dr.
Morris assessed at “at least two hours total” per eight hour workday.
(emphasis added). Even that assessment was given “little to no weight” because
the form Dr. Morris used is skewed. (Tr. 18) Thus, the ALJ did not err in failing to
address the non-credible limitation and the vocational expert’s response to it.
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.
IT IS HEREBY ORDERED that the decision of the Commissioner is
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 19th day of August, 2015.
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