Frank v. Colvin

Filing 19

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the relief sought by Plaintiff in his Complaint and Brief in Support of Complaint is DENIED (Docs. 1 , 12 ). Signed by Magistrate Judge Noelle C. Collins on 9/8/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DALE FRANK,

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

Case No. 4:14CV702NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Dale Frank
(Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security
Income (SSI), under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et
seq. Plaintiff has filed a brief in support of the Complaint. (Doc. 12). Defendant
has filed a brief in support of the Answer. (Doc. 17). The parties have consented
to the jurisdiction of the undersigned United States Magistrate Judge pursuant to
Title 28 U.S.C. § 636(c). (Doc. 8).

I.
PROCEDURAL HISTORY
On January 25, 2011, Plaintiff filed his applications for DIB and SSI. (Tr.
152-67). Plaintiff alleged a disability onset date of March 1, 2009. Plaintiff’s
applications were denied, and he requested a hearing before an Administrative Law
Judge (ALJ).

(Tr. 100-104, 107-108).

After a hearing, by decision, dated

November 30, 2012, the ALJ found Plaintiff not disabled.

(Tr. 11-23).

On

February 3, 2014, the Appeals Council denied Plaintiff’s request for review. (Tr.
1-7).

As such, the ALJ’s decision stands as the final decision of the

Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social

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Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ

3

will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s
RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is

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enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228

5

F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;

6

(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;

7

(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s
complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See

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id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to

9

include all of a plaintiff’s limitations, but only those which the ALJ finds credible.
See Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff stated, in his Disability Report, that he was disabled due to anxiety,
bipolar disorder, social disorder, arthritis, back problems, mania, depression, and
paranoia. (Tr. 219). Plaintiff, who was born in 1962, testified at the administrative
hearing that he had been unable to hold a job because he had trouble keeping up
and understanding instructions; he had nightmares and suicidal thoughts once
every two to four weeks; he felt tired due to his depression; he had visual
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hallucinations and heard voices; and he had panic attacks. (Tr. 67, 72-75). As for
his physical impairments, Plaintiff testified that, when his blood sugars fluctuated,
he had hot spells and blurry vision; his diabetic medications sometimes made him
shaky, sweaty, and hot and could make him pass out; he had muscle spasms in his
back due to an old gunshot wound; he had pain in his back and knees due to
arthritis; he had trouble walking up and down stairs and had shortness of breath;
and he thought he could sit for an hour or an hour and twenty minutes and lift or
carry twenty-five pounds. (Tr. 77-80).
The ALJ found that Plaintiff met the insured status requirements through
June 30, 2014; that Plaintiff had not engaged in substantial gainful employment
since March 1, 2009, his alleged onset date; that he had the severe impairments of
residuals from gunshot wounds, diabetes, mild degenerative spurring of the lumbar
and thoracic spine, mild degenerative changes of both knees, bipolar disorder,
psychotic disorder, and anxiety disorder; and that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a listed
impairment. The ALJ concluded that Plaintiff had the following RFC: He could
lift and carry 10 pounds frequently and 20 pounds occasionally; he could stand or
walk 6 hours out of an 8-hour work day; he was unable to climb ladders, ropes, or
scaffolds; he had to avoid all operational control of moving machinery, working in
unprotected heights, and the use of hazardous machinery; he was limited to work

11

that involved only simple, routine, and repetitive tasks; and he could perform only
low-stress work, as defined as requiring only occasional decision making, use of
judgment and changes in the work setting with no interaction with the public, only
casual and infrequent contact with coworkers, and contact with supervisors
concerning work duties (when work duties are being performed satisfactorily)
occurring no more than four times per work day. The ALJ further determined that
Plaintiff had no relevant past work; that, considering Plaintiff’s age, education,
work experience, and RFC, there were jobs that existed in significant numbers in
the national economy which Plaintiff could perform; and that, therefore, Plaintiff
was not disabled. (Tr. 11-23).
Plaintiff contends that the ALJ’s RFC determination is not supported by
substantial evidence for numerous reasons and that the ALJ failed to provide a
credibility analysis. (Doc. 12). For the following reasons, the court finds that
Plaintiff’s arguments are without merit and that the ALJ’s decision is based on
substantial evidence and is consistent with the Regulations and case law.
A.

Plaintiff’s Credibility:
Although Plaintiff contends the ALJ did not consider Plaintiff’s credibility,

the court notes that the ALJ did consider factors relevant to Plaintiff’s credibility.
As such, the court will first consider these factors. See Wildman v. Astrue, 596
F.3d 959, 969 (8th Cir. 2010) (A[The plaintiff] fails to recognize that the ALJ's

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determination regarding her RFC was influenced by his determination that her
allegations were not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th
Cir. 2005)); 20 C.F.R. §§ 404.1545, 416.945 (2010). As set forth more fully
above, the ALJ=s credibility findings should be affirmed if they are supported by
substantial evidence on the record as a whole; a court cannot substitute its
judgment for that of the ALJ. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is

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recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).

AIf an ALJ explicitly discredits the claimant=s

testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the reasons offered by the ALJ in support of his credibility determination
are based on substantial evidence.
First, the ALJ questioned Plaintiff’s credibility regarding the severity of his
symptoms based on Plaintiff’s failure to follow treatment advice. See Guilliams v.
Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (failure to file a recommended course
of treatment weighs against a claimant’s credibility). The court notes that when
Plaintiff presented for back pain, in May 2009, he refused to allow much palpation
to determine his pain level; he refused “SLR hip motion testing”; and he refused
“much hands on assessment.” (Tr. 425). Also, an April 27, 2010 progress note
states that Plaintiff said that he did not want to see a psychiatrist. (Tr. 336). When
Plaintiff presented for complaints regarding his blood sugars, on June 26, 2012, he

14

reported that he was not following a diabetic diet.

(Tr. 599).

Additionally,

Plaintiff missed a doctor’s appointment on July 9, 2012. (Tr. 531). Further, on
August 3, 2012, and September 6, 2012, Musaddeque Ahmad, M.D.,1 reported that
Plaintiff was non-compliant with a diabetic diet. (Tr. 563, 559).
Second, the ALJ considered the lack of objective medical findings to support
Plaintiff’s allegations regarding the severity of his conditions. See 20 CFR §
404.1529(c)(2) (agency will consider “objective medical evidence” when
evaluating symptoms); Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006)
(ALJ may find claimant’s subjective pain complaints are not credible in light of
objective medical evidence to the contrary).

The ALJ specifically noted that

Plaintiff’s lack of limitations in extremity strength or range of motion (ROM) was
inconsistent with disabling orthopedic impairments. (Tr. 18). In this regard,
although Plaintiff complained of right knee pain, an April 4, 2009 radiology report
states that an x-ray of Plaintiff’s right knee showed mild hypertrophic degenerative
changes, and “[n]o evidence of fracture or other additional bone abnormalities,”
and that the impression was “mild osteoarthritis.” (Tr. 292). Although Plaintiff
complained of disability due to his having a bullet fragment from a gunshot
wound, another x-ray of April 4, 2009, showed a bullet fragment “outside the

Although this doctor’s name is Musaddeque Ahmad, the ALJ and the parties refer
to him as Dr. Musaddeque. Thus, in order to avoid confusion, the court will do the
same.

1

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pleura posteriorly on portable lateral view of the chest,” a normal heart size, and no
active pulmonary infiltrates.

(Tr. 291).

Upon examination, when Plaintiff

presented in the emergency room for back pain, on May 16, 2009, he had normal
ROM, no focul weakness, and no focal sensory loss.

He denied respiratory,

cardiovascular, and neurological and psychological symptoms. (Tr. 424-25). A
May 16, 2009 x-ray of Plaintiff’s lumbar spine showed metallic densities
compatible with old gunshot fragments, but no abnormality of the lumbar vertical
vertebral body heights, disk space width, or alignment.

Also, there were no

abnormalities at the lumbar articulating facets or other visualized posterior
elements. (Tr. 427).
On July 12, 2009, when Plaintiff presented to the emergency room for back
pain, it was reported he was “[w]ell appearing, [had] [n]o [p]ain [d]istress, and was
[w]ell-[n]ourished.” Also, his strength and ROM were intact, he had no edema, no
calf tenderness, and he walked around the room with normal up-right gait and no
deformity.” (Tr. 430-31). When Plaintiff presented in the emergency room for
“back/hip pain,” on March 28, 2010, Plaintiff had intact ROM and strength, no
edema, no calf tenderness, intact “sensory/motor” and reflexes, and normal saddle
sensation. (Tr. 18, 465-66).
March 3, 2011 x-rays of Plaintiff’s knees showed “[m]ild degenerative
changes of the left knee without evidence for an acute process.” (Tr. 472, 474). A

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lumbar spine x-ray of this same date showed “[m]ild degenerative spurring of the
lumbar spine and lower thoracic spine without acute process.” (Tr. 473). On May
24, 2011, Jeffrey T. Reese, M.D., reported that Plaintiff’s stress echocardiogram
was normal and negative for ischemia. (Tr. 646).
On May 16, 2012, when Plaintiff presented with shortness of breath,
wheezing, and chest pain, Dr. Musaddeque reported that Plaintiff had no tingling
or numbness. The doctor counseled Plaintiff on the dangers of tobacco use and
urged him to quit smoking. (Tr. 570-71). When Plaintiff presented, on June 26,
2012, complaining about his blood sugar, his strength and ROM were intact; as for
his cardiovascular system, he had normal pulses, no rub, and no murmur; and, in
regard to his respiratory system, his airway was patent, breath sounds were equal,
and his respiration was non-labored. (Tr. 600). When Plaintiff again presented
with complaints regarding his blood sugar, on July 3, 2012, a review of his systems
showed no musculoskeletal symptoms, no “neurological/psych” symptoms, no
cardiovascular symptoms, and no respiratory symptoms. Plaintiff was instructed
on using insulin “as a rescue dose to lower blood sugar.” (Tr. 593, 596).
As for Plaintiff’s alleged mental impairments, it was reported, on July 12,
2009, that Plaintiff had “no pertinent psych hx.” (Tr. 430-31). On March 28,
2010, Plaintiff’s affect and mood were appropriate, and it was reported that
Plaintiff had “no pertinent psych hx.” (Tr. 465-66).

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On April 21, 2011, Jhansi Vasireddy, M.D., saw Plaintiff for a psychiatric
evaluation. Pursuant to a mental status examination, Dr. Vasireddy reported that
Plaintiff had normal psychomotor activity and good eye contact; his mood and
affect were appropriate; his thought process had “mild circumstantiality and
thought blocking”; his thought content did not reveal any suicidal ideations; his
concentration, attention span, cognitive function, and abstract reasoning were
intact; and his insight and judgment were fair to poor. (Tr. 498-99). On August 2,
2011, Dr. Vasireddy reported that Plaintiff was oriented and alert; he had normal
psychomotor activity; his mood and affect were “mildly constricted”; he had no
suicidal ideation; he had no paranoid delusions; and his insight and judgment were
fair to poor. (Tr. 549).
Plaintiff was hospitalized from August 13, 2011, to August 19, 2011, for
complaints of his being depressed. Upon discharge, it was reported that Plaintiff
was stabilized, his mood and affect were better, his depressive symptoms were
under control, and his diabetes was under control. At the time of discharge he was
not suicidal or homicidal. (Tr. 631-36). Plaintiff was also hospitalized from
October 12, 2011, to October 18, 2011, when he complained of being
suicidal/homicidal. Upon discharge, it was reported that he had improved, and was
to follow up with his own psychiatrist. (Tr. 614-25). When Plaintiff was seen on
October 25, 2011, Dr. Musaddeque reported that Plaintiff had no depression, sleep

18

disturbances, anxiety, hallucinations, or mania. (Tr. 20-21, 574). On October 31,
2011, Dr. Vasireddy reported that Plaintiff had normal psychomotor activity and
good eye contact; he was alert and oriented; he had no suicidal ideations; his sleep
and appetite were good; he had no paranoid delusions; and his insight and
judgment were fair. (Tr. 546).
On February 21, 2012, Dr. Vasireddy reported that Plaintiff was alert and
oriented; he was pleasant and cooperative; his thought process was goal directed;
his thought content did not reveal any suicidal ideations; he had no feelings of
hopelessness or worthlessness or no paranoid delusions, and his insight and
judgment were fair. (Tr. 545). On May 15, 2012, Dr. Vasireddy reported that
Plaintiff was alert and oriented; he had normal psychomotor activity; he had no
suicidal ideations; he had no mood swings, irritability, or anxiety; and his insight
and judgment were fair to poor. (Tr. 536). Also, on May 16, July 25, August 3,
and September 6, 2012, Dr. Musaddeque reported Plaintiff had no depression,
anxiety, mania, or hallucinations. (Tr. 20, 560, 564, 567, 570).
Third, the ALJ considered that Plaintiff received conservative treatment.
Conservative treatment is consistent with discrediting a claimant=s allegation of
disabling pain. Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998). Indeed, in May
2009, when Plaintiff refused to allow a complete physical examination, Plaintiff
said he “just need[ed] a back brace and pain medication.” (Tr. 425). Also, Dr.

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Vasireddy reported, in April 2011 that he recommended supportive therapy and
individual therapy to improve Plaintiff’s ability to deal with stressors.

Dr.

Vasireddy also recommended lifestyle changes, abstinence from drugs and alcohol,
exercise, a healthy diet, and smoking cessation on that date and in February 2012.
(Tr. 500, 545).
Fourth, the ALJ considered inconsistencies between Plaintiff’s statements
regarding the severity of his conditions and other evidence of record.
Contradictions between a claimant=s sworn testimony and what he actually told
physicians weighs against the claimant=s credibility. Karlix v. Barnhart, 457 F.3d
742, 748 (8th Cir. 2006). Indeed, when Plaintiff presented for back pain, in May
2009, he denied any psychological problems or symptoms. (Tr. 424). Plaintiff
argues that, when he was referred to the hospital, on October 12, 2011, Dr.
Musaddeque reported that Plaintiff had suicidal thoughts that required he have a
96-hour hold. (Doc. 12 at 9-10). The record reflects when Plaintiff arrived at the
hospital, he stated that the doctor had “misunderstood what he was trying to tell
him”; he said he felt depressed but denied any current suicidal ideation. (Tr. 614).
Fifth, the ALJ noted that Plaintiff was not on any medications for his mental
impairments and was not seeing a psychiatrist and did not have regular psychiatric
treatment. (Tr. 19, 336). A lack of regular treatment for an alleged disabling
condition detracts from a claimant=s credibility. See Dukes v. Barnhart, 436 F.3d

20

923, 928 (8th Cir. 2006) (upholding an ALJ’s determination that a claimant lacked
credibility due in part to “absence of hospitalizations . . ., limited treatment of
symptoms, [and] failure to diligently seek medical care”); 20 C.F.R. §
404.1529(c)(3)(v) (the agency will consider the claimant’s treatment when
evaluating her symptoms). In fact, in April 2010, Plaintiff reported that he was not
taking medication for his alleged mental impairment and was not seeing a
psychiatrist. (Tr. 19, 226).
Although Plaintiff argues that the ALJ failed to complete his analysis
regarding Plaintiff’s failure to have mental health treatment in 2010, in fact,
Plaintiff did not seek treatment for his mental impairments from his alleged onset
date of March 1, 2009, through April 21, 2011, on which date he saw Dr.
Vasireddy for a consultative examination. Thus, when Plaintiff saw Dr. Vasireddy,
it was two years after his alleged onset date. (Tr. 497-500). Indeed, as considered
by the ALJ, Plaintiff’s last appointment with Dr. Vasireddy was on May 15, 2012.
(Tr. 21, 536). Additionally, on August 13, 2012, Plaintiff was advised that he
needed to have an appointment scheduled by August 27, 2012, with Dr. Vasireddy
or his chart would be closed. (Tr. 529).
Also, in regard to Plaintiff’s lack of treatment for his alleged physical
impairments, on May 16, 2012, when Plaintiff presented with shortness of breath,
wheezing, and chest pain, Dr. Musaddeque reported that he had not seen Plaintiff

21

for seven months, although Plaintiff said he went to the Veterans Administration
Hospital to get his medications refilled. (Tr. 569).
Sixth, the ALJ considered that, when Plaintiff was hospitalized in August
and October 2011, no doctor opined that Plaintiff’s conditions were disabling. (Tr.
20). See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (AWe find it
significant that no physician who examined Young submitted a medical conclusion
that she is disabled and unable to perform any type of work.@) (citing Brown v.
Chater, 87 F.3d 963, 964-65 (8th Cir. 1996)). See also Eichelberger, 390 F.3d at
590 (ALJ could find claimant not credible based in part on fact that no physician
imposed any work-related restrictions).
Seventh, to the extent Plaintiff argues the ALJ did not consider his activities
of daily living, the ALJ stated that Plaintiff’s treatment records did not document
any limitations in regard to Plaintiff’s activities of daily living. (Tr. 15). The court
notes that Plaintiff stated, in a Function Report – Adult that he prepared his own
meals; when he went out, he drove a car; he could go out alone; he shopped in
stores for food; he shopped once a week; he could pay bills, count change, use
money, and handle a savings account “somewhat”; and he spent time with others,
“sometime[s] on [the] phone.” (Tr. 237-39). While the undersigned appreciates
that a claimant need not be bedridden before he can be determined to be disabled,
Plaintiff's daily activities can nonetheless be seen as inconsistent with his

22

subjective complaints of a disabling impairment and may be considered in judging
the credibility of complaints. See Eichelberger, 390 F.3d at 590 (ALJ properly
considered that plaintiff watched television, read, drove, and attended church upon
concluding that subjective complaints of pain were not credible); Dunahoo v.
Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). Indeed, the Eighth Circuit holds that
allegations of disabling Apain may be discredited by evidence of daily activities
inconsistent with such allegations.@ Davis v. Apfel, 239 F.3d 962, 967 (8th Cir.
2001). AInconsistencies between [a claimant=s] subjective complaints and [his]
activities diminish [his] credibility.@ Goff, 421 F.3d at 792. See also Haley v.
Massanari, 258 F.3d 742, 748 (8th Cir. 2001); Nguyen v. Chater, 75 F.3d 429, 43941 (8th Cir. 1996) (holding that a claimant=s daily activities, including visiting
neighbors, cooking, doing laundry, and attending church, were incompatible with
disabling pain and affirming denial of benefits at the second step of analysis).
Eighth, to the extent the ALJ did not consider every Polaski factor, an ALJ is
not required to do so. See Samons v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007)
(“[W]e have not required the ALJ’s decision to include a discussion of how every
Polaski ‘factor’ relates to the claimant’s credibility.”); Goff, 421 F.3d at 791
(rejecting argument that “the ALJ was required to make an express credibility
finding on each of the Polaski factors.”). In conclusion, the court finds that the

23

ALJ did consider Plaintiff’s credibility and that the ALJ’s decision, in this regard,
is based on substantial evidence.
B.

Plaintiff’s RFC:
The Regulations define RFC as Awhat [the claimant] can do@ despite his or

her Aphysical or mental limitations.@ 20 C.F.R. ' 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider
the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).
As stated above, the ALJ found that Plaintiff had the following RFC: He
could lift and carry 10 pounds frequently and 20 pounds occasionally; he could
stand or walk 6 hours out of an 8-hour work day; he was unable to climb ladders,
ropes, or scaffolds; he had to avoid all operational control of moving machinery,
working in unprotected heights, and the use of hazardous machinery; he was
limited to work that involved only simple, routine, and repetitive tasks; and he
could perform only low-stress work, as defined as requiring only occasional
24

decision making, use of judgment and changes in the work setting with no
interaction with the public, only casual and infrequent contact with coworkers, and
contact with supervisors concerning work duties (when work duties are being
performed satisfactorily) occurring no more than four times per work day.
Plaintiff argues that, upon formulating Plaintiff’s RFC, the ALJ failed to
point to any medical evidence in support of his determination, and the ALJ did not
provide a narrative discussion describing how the evidence supported his decision.
Concerning Plaintiff’s mental impairments, Plaintiff contends that the ALJ did not
sufficiently discuss Plaintiff’s hospitalizations or evidence from Dr. Vasireddy or
Dr. Musaddeque; the ALJ cited only to “selective” medical notes; the ALJ did not
properly consider Plaintiff’s Global Assessment of Functioning (GAF) scores; the
ALJ gave improper weight to the opinion of Gretchen Brandhorst, Psy. D., a nontreating doctor; and the ALJ provided a selective narrative summary of the medical
evidence. (Doc. 12 at 8-12). For the following reasons, the court finds Plaintiff’s
arguments without merit.
First, as required by the case law and Regulations, when determining
Plaintiff’s RFC, the ALJ considered the medical records as discussed above in
regard to Plaintiff’s credibility, including records from Plaintiff’s hospitalizations
and records from Dr. Musaddeque and Dr. Vasireddy. Notably, as discussed
above, in May 2009, Plaintiff had normal ROM; in March 2010, Plaintiff’s

25

strength and ROM were intact; in March 2011, he had only mild degenerative
changes in his left knee, lumbar spine, and lower thoracic spine; and, in June 2012,
Plaintiff’s ROM was intact. In regard to Plaintiff’s alleged mental impairments, as
discussed above, in July 2009 and March 2010, Plaintiff had no pertinent
psychological symptoms; Plaintiff did not have medical treatment for his mental
conditions until April 2011; in October 2011 and February and May 2012, Plaintiff
was alert and oriented, had no suicidal ideations; and, in May 2012, he had no
mood swings, irritability, or anxiety.
Second, as discussed above, Plaintiff did not have ongoing psychiatric
counseling until April 2011 and did not see Dr. Vasireddy after May 2012. An
absence of evidence of ongoing counseling or psychiatric treatment or
deterioration or change in a claimant’s mental capabilities disfavors a finding of
disability. See Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000).
Third, although, in an October 25, 2011 letter to “Whom It May Concern,”
Dr. Musaddeque opined that Plaintiff was “permanently and totally disabled [] due
to his multiple psychiatric conditions (Tr. 527), as Plaintiff’s treating doctor, Dr.
Musaddeque’s opinion was not entitled to controlling weight if it was not
supported by medically acceptable clinical or diagnostic data, see Chamberlain v.
Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995), or if it was inconsistent with his
treatment notes, see Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (AIt is

26

permissible for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician's clinical treatment notes.@).
Notably, Dr. Musaddeque reported, on the same date that he rendered his
opinion that Plaintiff was disabled due to psychological problems, that Plaintiff
had no depression, sleep disturbances, anxiety, hallucinations, or mania. Thus, Dr.
Musaddeque’s opinion was inconsistent with his treatment notes and on other dates
he made similar findings. (Tr. 560, 564, 567). In any case, Dr. Musaddeque was
Plaintiff’s primary care physician; he was not a psychiatrist or psychologist. See
Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010); Kelley v. Callahan, 133 F.3d
583, 589 (8th Cir. 1998) (AThe Commissioner is encouraged to give more weight to
the opinion of a specialist about medical issues related to his or her area of
specialty than the opinion of a source who is not a specialist.@). See also 20 C.F.R.
§§ 404.1527(d)(5) and 416.927(d)(5). Dr. Musaddeque’s opinion regarding the
severity of Plaintiff’s mental impairments was, therefore, not entitled to controlling
weight. See Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010).
Moreover, Dr. Musaddeque’s brief, conclusory letter stating that Plaintiff
was disabled was not binding on the ALJ. Ward v. Heckler, 786 F.2d 844, 846
(8th Cir. 1986) (per curiam) ("Even statements made by a claimant's treating
physician regarding the existence of a disability have been held to be properly

27

discounted in favor of the contrary medical opinion of a consulting physician
where the treating physician's statements were conclusory in nature.@).
Fourth, the ALJ gave weight to the opinion of Dr. Brandhorst, a State
agency psychiatric consultant, who, after reviewing Plaintiff’s medical records,
opined, on July 14, 2011, that Plaintiff had moderate limitations in regard to
maintaining social functioning and concentration, persistence or pace, to
understanding and remembering detailed instructions, to interacting appropriately
with the general public, to getting along with coworkers, and to responding
appropriately to changes in the work setting. Plaintiff was not significantly limited
in the ability to understand and remember very short and simple instructions, to
carry out very short and simple instructions, to perform activities within a
schedule, to maintain regular attendance, to be punctual within customary
tolerances, to make simple work-related decisions, to complete a normal workday
without interruptions from psychologically-based symptoms, and to be aware of
normal hazards and take appropriate precautions. (Tr. 502-16). As a state agency
consultant and psychologist, Dr. Brandhorst was a highly qualified expert, upon
whose opinion the ALJ could rely.

See 20 C.F.R. §§ 404.1527(f)(2)(i),

416.927(f)(2)(i) (State agency medical consultants are highly qualified experts in
Social Security disability evaluation; therefore, ALJs must consider their findings
as opinion evidence.); Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007)

28

(moderate

limitations

do

not

prevent

an

individual

from

functioning

Asatisfactorily@).
Fifth, Dr. Brandhorst’s opinion was consistent with the opinion of another
State agency medical consultant, William McCollum, M.D., who opined, on March
12, 2012, after reviewing the medical and non-medical evidence, that Plaintiff was
capable of simple, repetitive tasks away from the public. Upon reaching this
conclusion, Dr. McCollum considered that Plaintiff had not required inpatient
treatment for his mental health conditions and that he had been noncompliant with
treatment. (Tr. 526). Dr. McCollum was also a highly qualified expert, upon
whose opinion the ALJ could rely.

See 20 C.F.R. §§ 404.1527(f)(2)(i),

416.927(f)(2)(i).
Sixth, upon considering the opinions of Dr. McCullum, Dr. Brandhorst, Dr.
Musaddeque, and Dr. Vasireddy regarding Plaintiff’s impairments, the ALJ was
fulfilling his role to resolve conflicts between the opinions of doctors of record.
See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (AIt is the ALJ=s function
to resolve conflicts among the various treating and examining physicians.@)
(internal quotation marks omitted).
Seventh, in regard to Plaintiff’s argument that the ALJ did not properly
consider Plaintiff’s GAF scores (Doc. 12 at 13), Global Assessment of Functioning
(GAF) is the clinician=s judgment of the individual=s overall level of functioning,

29

not including impairments due to physical or environmental limitations.

See

Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, 30-32 (4th ed.
1994).

Expressed in terms of degree of severity of symptoms or functional

impairment, GAF scores of 31 to 40 represent Asome impairment in reality testing
or communication or major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood,@ 41 to 50 represents Aserious,@
scores of 51 to 60 represent Amoderate,@ scores of 61 to 70 represent Amild,@ and
scores of 90 or higher represent absent or minimal symptoms of impairment. Id. at
32. See also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (A[A] GAF score
of 65 [or 70] . . . reflects >some mild symptoms (e.g. depressed mood or mild
insomnia) OR some difficulty in social, occupational, or school functioning . . . but
generally

functioning

pretty

well,

has

some

meaningful

interpersonal

relationships.=@) (quoting Kohler v. Astrue, 546 F.3d 260, 263 (2d Cir. 2008)). See
also Goff, 421 F.3d at 791, 793 (affirming where court held GAF of 58 was
inconsistent with doctor’s opinion that claimant suffered from extreme limitations;
GAF scores of 58-60 supported ALJ’s limitation to simple, routine, repetitive
work).
Indeed, while Plaintiff was hospitalized in 2011, his GAF was assessed as 20
to 30, and upon discharge it was assessed as 30. (Tr. 632, 625). As discussed
above in regard to Plaintiff’s credibility, however, upon discharge it was also
30

reported that Plaintiff’s condition had improved. (Tr. 625). Also, Thomas J.
Spencer, Psy. D., reported, in October 2010, that Plaintiff’s GAF was 45 to 60 (Tr.
281), and Dr. Vasireddy reported that Plaintiff had a GAF of 50 to 55 on one
occasion, and that he had a GAF of 55 to 60 on another (Tr. 499, 536).
The ALJ noted, however, that Plaintiff’s low GAF scores were not supported
because Plaintiff received no regular psychiatric care and was not taking
medications for his mental impairments.

(Tr. 20, 336, 536).

In any case,

Plaintiff’s GAF scores of 51 to 60 represent only Amoderate@ symptoms of
impairment. See also Goff, 421 F.3d at 791, 793 (affirming where court held GAF
of 58 was inconsistent with doctor’s opinion that claimant suffered from extreme
limitations). Moreover, an ALJ may afford greater weight to medical evidence and
testimony than to GAF scores. Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010);
Grim v. Colvin, 2014 WL 859840, at *7-8 (E.D. Mo. Mar. 5, 2014) (ALJ properly
found claimant’s mental impairments were not serious despite the presence of GAF
scores that reflected moderate or serious symptoms).
Further, as discussed above, in April 2011, when he reported Plaintiff had a
GAF of 50 to 55, Dr. Vasireddy also reported that, upon examination, Plaintiff’s
mood and affect were appropriate, his thought content did not reveal suicidal
ideations, and Plaintiff’s cognitive function was intact. Dr. Vasireddy also noted
Plaintiff’s subjective reporting of his symptoms, such as that his anxiety was worse

31

in public places, he heard voices “on and off,” and he saw “bloody stuff’ coming at
him very fast and hitting him in the face.” (Tr. 499). See Renstrom v. Astrue, 680
F.3d 1057, 1064-65 (8th Cir. 2012) (affirming where ALJ did not give controlling
weight to opinion of treating doctor, where doctor’s opinion was “largely based on
[claimant’s] subjective complaints”).
Finally, the Commissioner has declined to endorse the GAF scale for “use in
the Social Security and SSI disability programs,” although it may still be used to
assist an ALJ in assessing a claimant’s level of functioning. Halverson v. Astrue,
600 F.3d 922, 930-31 (8th Cir. 2010) (quoting 65 Fed. Reg. 50746, 50764-65,
2000 WL 1173632 (Aug. 21, 2000), and citing Howard v. Comm'r of Soc. Sec.,
276 F.3d 235, 241 (6th Cir. 2002) (AWhile a GAF score may be of considerable
help to the ALJ in formulating the [residual functional capacity], it is not essential
to the RFC's accuracy.@).
Eighth, to the extent Plaintiff argues the ALJ failed to consider the opinion
of Dr. Spencer who opined that Plaintiff was disabled for purposes of proceedings
before the Missouri Department of Social Services (MDSS) (Tr. 278-81), and to
the extent Plaintiff argues that the ALJ did not consider the determination of the
MDSS that Plaintiff was disabled (Tr. 192-201), an AALJ is not bound by the
disability rating of another agency when he is evaluating whether the claimant is
disabled for purposes of social security benefits, 20 C.F.R. § 404.1504.@ Pelkey v.

32

Barnhart, 433 F.3d 575, 579 (8th Cir. 2006) (quoting Fisher v. Shalala, 41 F.3d
1261, 1262 (8th Cir. 1994) (per curiam) (AThere is no support for [the claimant]=s
contention that his sixty-percent service-connected disability rating equates with an
inability to engage in any substantial gainful activity under social security
standards.@).

See also Cruze v. Chater, 85 F.3d 1320, 1324 (8th Cir. 1996)

(holding that whether social security disability claimant is disabled under state law
is not binding on Commissioner of Social Security); Jenkins v. Chater, 76 F.3d
231, 233 (8th Cir. 1996) (holding that a disability determination by the VA is not
binding on an ALJ considering a Social Security applicant's claim for disability
benefits).
Moreover, as noted by the ALJ, Dr. Spencer opined that Plaintiff’s prognosis
would “likely improve[],” with appropriate treatment and compliance. (Tr. 281).
For purposes of a Social Security claimant’s being found disabled, conditions
which can be controlled by treatment are not disabling. See Renstrom v. Astrue,
680 F.3d 1057, 1066 (8th Cir. 2012); Davidson v. Astrue, 578 F.3d 838, 846 (8th
Cir. 2009). In any case, as noted by the ALJ, Dr. Spencer’s findings were based
upon Plaintiff’s condition when he was not taking medications for his mental
condition or receiving psychiatric care. (Tr. 20, 278).
Ninth, the limitations imposed by the ALJ were actually greater than those
imposed by Dr. Brandhorst and Dr. McCollum, as the ALJ found that Plaintiff was

33

limited to simple, routine, and repetitive tasks, low-stress work, occasional use of
judgment, occasional changes in the work setting with no interaction with the
public, casual and infrequent contact with coworkers, and contact with supervisors
concerning work duties occurring no more than four times a work day.
Tenth, Plaintiff acknowledged, in an April 3, 2011 Function Report – Adult,
that his alleged disabling conditions did not affect his ability to stand, sit, talk, see,
or use his hands. (Tr. 240).
Eleventh, the ALJ did not adopt the opinion of any one medical source of
record, but rather, upon formulating Plaintiff’s RFC, considered all the opinions of
record.

See McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (AThe

Commissioner must determine a claimant's RFC based on all of the relevant
evidence, including the medical records, observations of treating physicians and
others, and an individual's own description of his limitations.@) (citing Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995)). An ALJ, moreover, “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 v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011).
Twelfth, to the extent Plaintiff contends that Dr. Brandhorst and Dr.
McCollum did not have the benefit of reviewing all the evidence of records,
including Plaintiff’s subsequent treatment notes and hospitalization records when

34

they rendered their opinions in July 2011 and March 2012, respectively, regarding
Plaintiff’s alleged mental health impairments, Dr. Vasireddy’s records do not
reflect that Plaintiff’s condition detrimentally changed after July 2011. (Tr. 513,
526).
Thirteenth, to the extent the ALJ may not have specifically addressed, in his
decision, aspects of Plaintiff’s medical records, it does not mean the ALJ did not
consider these records. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)
(holding that an ALJ is not required to discuss every piece of evidence submitted
and that an AALJ=s failure to cite specific evidence does not indicate that such
evidence was not considered@). To the extent Plaintiff cites deficiencies in the
ALJ’s decision writing to support his argument that the ALJ’s decision is not
based on substantial evidence, a deficiency in opinion-writing is not a sufficient
reason for setting aside an administrative finding where the deficiency had no
practical effect on the outcome of the case. Senne v. Apfel, 198 F.3d 1065, 1067
(8th Cir. 1999). Plaintiff has not referenced any deficiencies which would affect
the outcome of the ALJ’s RFC determination.
In conclusion, the court finds that when determining Plaintiff’s RFC, as
required by the Regulations and case law, the ALJ considered the combination of
Plaintiff’s impairments, and based his RFC determination on all the credible
evidence of record. To the extent Plaintiff suggests the ALJ failed to include in

35

Plaintiff’s RFC limitations beyond those which the ALJ found credible, a
claimant’s RFC need only include his credible limitations.

See Tindell v.

Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006) (AThe ALJ included all of Tindell=s
credible limitations in his RFC assessment, and the ALJ=s conclusions are
supported by substantial evidence in the record.@). Further, the court finds that
ALJ’s RFC finding is based on substantial evidence and that it is consistent with
the Regulations and case law.
After determining Plaintiff’s RFC, the ALJ submitted a hypothetical to a
VE, which described a person of Plaintiff’s age and with Plaintiff’s work history,
education, and RFC, and the VE opined that there was work in the national
economy which the hypothetical person could perform. See Martise v. Astrue,
641 F.3d 909, 927 (8th Cir. 2011) (ABased on our previous conclusion . . . that >the
ALJ's findings of [the claimant=s] RFC are supported by substantial evidence,= we
hold that >[t]he hypothetical question was therefore proper, and the VE's answer
constituted substantial evidence supporting the Commissioner=s denial of
benefits.=@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006));
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s
testimony is substantial evidence when it is based on an accurately phrased
hypothetical capturing the concrete consequences of a claimant=s limitations). The
ALJ considered that the VE’s testimony was consistent with the information
36

contained in the Dictionary of Occupational Titles. Consequently, the ALJ found
Plaintiff not disabled. As such, the court finds that the ALJ’s decision is based on
substantial evidence and consistent with the Regulations and case law.
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on
the record as a whole supports the Commissioner’s decision that Plaintiff is not
disabled.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in his
Complaint and Brief in Support of Complaint is DENIED (Docs. 1, 12).
Dated this 8th day of September 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

37