Taylor v. Colvin
MEMORANDUM AND ORDER re: 18 SOCIAL SECURITY CROSS BRIEF re 13 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin, 13 SOCIAL SECURITY BRIEF filed by Plaintiff Todd Taylor. Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 9/29/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
) Case No. 4:14CV1245 ACL
MEMORANDUM AND ORDER
Plaintiff Todd Taylor brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration (“SSA”) Commissioner’s decision, following
continuing disability review (“CDR”), finding that he was no longer entitled to previously-granted
disability insurance benefits under Title II of the Social Security Act. This matter is pending
before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c). A summary of the entire record is presented in the parties’ briefs and is repeated
here only to the extent necessary.
I. Procedural History
On December 23, 2009, Taylor was found disabled beginning January 31, 2007, under the
application for Title II disability insurance benefits that he protectively filed on October 14, 2008.
(Tr. 68-71.) The administrative law judge (“ALJ”) found that Taylor’s degenerative disc disease
of the lumbar spine met the criteria of listing 1.04A and that Taylor was therefore disabled. (Tr.
70.) The ALJ noted that medical improvement was “expected with appropriate treatment.” (Tr.
71.) Consequently, the ALJ recommended a continuing disability review in twelve months. Id.
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On October 15, 2011, the SSA reviewed Taylor’s claim for continuing disability, and
concluded that Taylor was no longer disabled as of that date because work-related medical
improvement had occurred. (Tr. 72, 74.) Taylor’s period of disability terminated on December
31, 2011. (Tr. 74.) Taylor appealed the termination of benefits, and the termination was
affirmed upon reconsideration. (Tr. 88-96.) On November 19, 2012, following a hearing, an
ALJ found that Taylor was no longer disabled as of December 31, 2011. (Tr. 23-31.) On May
12, 2014, the Appeals Council denied Taylor’s request for review of the ALJ’s decision. (Tr.
1-3.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20
C.F.R. '' 404.981.
In the instant action, Taylor first claims that the ALJ erred when he failed to “properly
apply the ‘medical improvement’ standard prior to concluding that ‘there has been improvement’
in the claimant’s medical condition and that the tests did not show a worsening.” (Doc. 13 at 5.)
Taylor next argues that the ALJ erred by failing to “comply with 20 C.F.R. ' 404.1527 by failing to
accord adequate weight to the opinion of the claimant’s treating physician.” Id.
II. Statutory Framework and Standard of Review
Once an individual becomes entitled to disability and SSI benefits, his continued
entitlement to benefits must be reviewed periodically. 42 U.S.C. § 423(f)(1); 20 C.F.R.
§ 416.949(a). If there has been medical improvement related to the claimant’s ability to work,
and the claimant is able to engage in substantial gainful activity, then a finding of not disabled will
be appropriate. Id.; Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir. 1991). The “medical
improvement” standard requires the Commissioner to compare a claimant’s current condition with
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the condition existing at the time the claimant was found disabled and awarded benefits. Delph v.
Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008), cert. denied, 129 S. Ct. 1999 (2009)).
The Eighth Circuit has articulated the burden in this type of case as follows:
The claimant in a disability benefits case has a ‘continuing burden’ to demonstrate
that he is disabled, Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893, 903, 47 L.Ed.2d
18 (1976), and no inference is to be drawn from the fact that the individual has previously
been granted benefits. 42 U.S.C. ' 423(f). Once the claimant meets this initial
responsibility, however, the burden shifts to the Secretary to demonstrate that the claimant
is not disabled. Lewis v. Heckler, 808 F.2d 1293, 1297 (8th Cir. 1987). If the
Government wishes to cut off benefits due to an improvement in the claimant’s medical
condition, it must demonstrate that the conditions which previously rendered the claimant
disabled have ameliorated, and that the improvement in the physical condition is related to
claimant’s ability to work. 20 C.F.R. ' 404.1594(b)(2)-(5).
Nelson, 946 F.2d at 1315-16.
The CDR process involves a sequential analysis prescribed in 20 C.F.R. § 404.1594(f),
pursuant to which the Commissioner must determine the following:
(1) whether the claimant is currently engaging in substantial gainful activity, (2) if
not, whether the disability continues because the claimant’s impairments meet or
equal the severity of a listed impairment, (3) whether there has been a medical
improvement, (4) if there has been a medical improvement, whether it is related to
the claimant’s ability to work, (5) if there has been no medical improvement or if
the medical improvement is not related to the claimant’s ability to work, whether
any exception to medical improvement applies, (6) if there is medical improvement
and it is shown to be related to the claimant’s ability to work, whether all of the
claimant’s current impairments in combination are severe, (7) if the current
impairment or combination of impairments is severe, whether the claimant has the
residual functional capacity to perform any of his past relevant work activity, and
(8) if the claimant is unable to do work performed in the past, whether the claimant
can perform other work.
Delph, 538 F.3d at 945-46.
The regulations define medical improvement as:
[A]ny decrease in the medical severity of your impairment(s) which was present at
the time of the most recent favorable medical decision that you were disabled or
continued to be disabled. A determination that there has been a decrease in
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medical severity must be based on changes (improvement) in the symptoms, signs
and/or laboratory findings associated with your impairment(s).
20 C.F.R. § 416.994(b)(1)(I). Medical improvement can be found in cases involving the
improvement of a single impairment if that improvement increases the claimant’s overall ability to
perform work related functions. Id. § 416.994(c)(2).
Medical improvement is related to the claimant’s ability to work if an impairment
improved to the extent that it no longer meets a listing. See 20 C.F.R. ' 404.1594(c)(3)(i) (“If
medical improvement has occurred and the severity of the prior impairment(s) no longer meets or
equals the same listing section used to make our most recent favorable decision, we will find that
the medical improvement was related to your ability to work”).
Judicial review of the Commissioner’s decision is limited to determining whether the
Commissioner’s findings are supported by substantial evidence. See Finch v. Astrue, 547 F.3d
933, 935 (8th Cir. 2008). “Substantial evidence ‘is less than a preponderance, but enough so that
a reasonable mind might find it adequate to support the conclusion.’” Cruse v. Chater, 85 F. 3d
1320, 1323 (8th Cir. 1996) (quoting Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). The
Court does not re-weigh the evidence or review the record de novo. Id. at 1328 (citing Robinson
v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992)). Instead, even if it is possible to draw two different
conclusions from the evidence, the Court must affirm the Commissioner’s decision if it is
supported by substantial evidence. Id. at 1320; Clark v. Chater, 75 F.3d 414, 416-17 (8th Cir.
III. The ALJ=s Determination
The ALJ made the following findings:
1. The most recent favorable medical decision finding that the claimant was disabled is
the decision dated December 23, 2009. This is known as the “comparison point decision”
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2. At the time of the CPD, the claimant had the following medically determinable
impairments: degenerative disc disease of the lumbar spine. This impairment was found
to result in meeting listing 1.04.
3. Through December 31, 2011, the date the claimant’s disability ended, the claimant did
not engage in substantial gainful activity (20 CFR 404.1594(f)(1)).
4. The medical evidence establishes that, as of December 31, 2011, the claimant had the
following medically determinable impairment: degenerative disc disease of the lumbar
5. Since December 31, 2011, the claimant did not have an impairment or combination of
impairments which met or medically equaled the severity of an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526).
6. Medical improvement occurred as of December 31, 2011 (20 CFR 404.1594(b)(1)).
7. As of December 31, 2011, the impairments present at the time of the CPD had
decreased in medical severity to the point where the claimant had the residual functional
capacity to lift up to 20 pounds occasionally, sit for seven hours out of an eight-hour work
day, and stand or walk for one hour out of an eight-hour work day. The claimant is unable
to climb ladders, ropes, or scaffolds, as well as kneel, crouch or crawl. The claimant can
occasionally climb ramps or stairs and can occasionally stoop. The claimant is unable to
operate foot control operations. The claimant must avoid all exposure to extreme
vibration, operational control of moving machinery, working at unprotected heights, and
the use of hazardous machinery.
8. The claimant’s medical improvement is related to the ability to work because it
resulted in an increase in the claimant’s residual functional capacity (20 CFR
9. As of December 31, 2011, the claimant was unable to perform past relevant work (20
10. On December 31, 2011, the claimant was a younger individual age 18-49 (20 CFR
11. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564).
12. Beginning on December 31, 2011, transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the claimant has
transferable job sills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
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13. As of December 31, 2011, considering the claimant’s age, education, work
experience, and residual functional capacity based on the impairments present as of
December 31, 2011, the claimant was able to perform a significant number of jobs in the
national economy (20 CFR 404.1560(c) and 404.1566).
14. The claimant’s disability ended as of December 31, 2011 (20 CFR 404.1594(f)(8)).
The ALJ’s final decision reads as follows:
The claimant’s disability under sections 216(i) and 223(f) of the Social Security Act ended
as of December 31, 2011.
As noted above, Taylor raises two claims in this action for judicial review of the ALJ’s
decision terminating benefits. The undersigned will discuss Taylor’s claims in turn.
IV.A. Medical Improvement Determination
Taylor first argues that the ALJ committed reversible error in failing to properly apply the
“medical improvement” standard prior to summarily concluding that “there has been
improvement” in Taylor’s medical condition. Defendant contends that the ALJ properly
concluded that Taylor’s degenerative disc disease had medically improved related to the ability to
Taylor was found disabled in the comparison point decision issued on December 23, 2009,
because his degenerative disc disease met listing 1.04A. (Tr. 70-71.) Listing 1.04 provides:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root (including the cauda equina) or the spinal
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
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reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine)
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
20 C.F.R. Pt. 404, Subpt. P, Appx. 1, ' 1.04. The ALJ in the comparison point decision found that
Taylor’s lumbar spine impairments, including spinal stenosis,1 nerve root compression and
impingent of the thecal sac at L4-5, meet the criteria of Section 1.04A. (Tr. 70.) The ALJ noted
that an MRI revealed broad posterior and left lateral herniated disk at L4-5 compressing the thecal
sac in the L5 nerve root, as well as retrolisthesis2 from L4 to L5 and spondylolisthesis3 of L5 on
The ALJ in the instant case found that Taylor’s degenerative disc disease of the lumbar
spine no longer met Listing 1.04 as of December 31, 2011, because there was no evidence of nerve
root compression, spinal arachnoiditis, or pseudo-claudication of the lumbar spine that results in
an inability to ambulate effectively. (Tr. 26.) The medical evidence supports this finding.
The ALJ noted that Taylor underwent a laminectomy4 and fusion surgery at L4-5 and L5-S
in October of 2009, performed by Jacob Buchowski, M.D., due to a diagnosis of spondylolisthesis
Narrowing of the spinal canal. Stedman’s Medical Dictionary, 1832 (28th Ed. 2006).
Retrolisthesis is “backwards slippage of one vertebral body on another.” There is “a possible
association between retrolisthesis and increased back pain and impaired back function.” Michael
Shen et al., Retrolisthesis and Lumbar Disc Herniation: A Pre-Operative Assessment of Patient
Function, 7 SPINE J. 406 (2007), available at
Forward movement of the body of one of the lower lumbar vertebrae on the vertebra below it, or
on the sacrum. Stedman’s at 1813.
Excision of a vertebral lamina. Stedman’s at 1046.
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and herniated nucleus pulposus5 at L4-5. (Tr. 26, 428-29.) At his first post-operative visit in
November 2009, Taylor reported that his back pain and bilateral lower extremity symptoms had
greatly improved. (Tr. 409.) Taylor indicated that he could not believe how well he was doing.
Id. Taylor used a cane, but Dr. Buchowski indicated that it was more for “moral support than
anything else.” Id. Upon examination, Taylor had normal strength and sensation. (Tr. 409.)
In February 2010, Taylor reported that he had been doing well until approximately three weeks
earlier when he fell off of a porch and started experiencing persistent low back pain with radiation
into his right lower extremity. (Tr. 247.) Upon examination, Taylor had a well-healed incision,
normal motor strength throughout the lower extremities, normal sensation, and normal reflexes.
Id. X-rays revealed that his spinal implants were in good position and there was no evidence of
implant loosening or failure. Id. Taylor underwent a lumbar myelogram and post-myelogram
CT scan later that month. (Tr. 253.) On March 8, 2010, Dr. Buchowski noted that the CT
myelogram showed no evidence of neural compression and that all implants looked good. (Tr.
249.) Dr. Buchowski stated that it was “difficult to explain his symptoms.” Id.
returned for follow-up on January 3, 2012, at which time he reported that he had “done well” since
his surgery, and that his lower extremity radicular symptoms and low back pain had resolved.
(Tr. 407.) Taylor reported that the reason for his visit was that he had developed thoracic back
pain. Id. On physical examination, Dr. Buchowski noted normal motor strength throughout the
lower extremities, intact sensation, normal and symmetric reflexes throughout the lower
extremities, negative straight leg raise test, and no significant tenderness to palpation over his
thoracic spine. Id. Radiographs Taylor underwent that day revealed a solid fusion. Id. The
ALJ found that Dr. Buchowski’s treatment records were not consistent with Taylor’s allegation
The nucleus pulposus is the soft fibrocartilage central portion of the intervertebral disc.
Stedman’s at 1343.
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that his impairments had worsened or that he had ongoing symptoms relating to his spinal
impairments following surgery. (Tr. 26.)
The ALJ next stated that the objective medical records after Taylor’s surgery do not
support the presence of significant spinal impairments. Id. Taylor’s February 2010 CT
myelogram revealed grade 2 anterolisthesis6 of L5 on S1, but no significant neural foraminal or
spinal canal narrowing. (Tr. 27, 253.) Taylor also underwent a nerve conduction study on
March 30, 2010, which revealed evidence of chronic neurogenic7 changes in L4/S1 distribution on
the right which could represent chronic right L4/L1 lumbar radiculopathy.8 (Tr. 296.)
The ALJ noted that Taylor also saw family physician Aubra Houchin, D.O., for treatment
of his back pain following his surgery. (Tr. 27.) On February 16, 2010, Taylor reported
experiencing pain in his back and down his leg after slipping and falling on ice two weeks prior.
(Tr. 278.) Upon examination, Dr. Houchin noted that Taylor was not acutely ill and moved
“pretty good.” Id. Taylor had no gross motor deficit, and a slightly labored gait. Id. Dr.
Houchin prescribed Vicodin9 for Taylor’s back pain. Id. On March 11, 2010, Taylor
complained of back pain, fecal incontinence, and radiculopathy. (Tr. 275.) Taylor’s physical
examination was normal, other than Taylor appeared in pain and was agitated, with rapid speech.
(Tr. 276.) Dr. Houchin noted mild weakness in the right quad on extension. Id. Dr. Houchin
increased Taylor’s Vicodin, started him on Gabapentin,10 and ordered a bone scan. (Tr. 277.)
Grade II anterolisthesis is 26 to 50 percent forward slippage of one vertebral body on another.
NCBI, Bone Disorders of the Spine, http://www.ncbi.nlm.nih.gov/books/NBK27236/ (last visited
September 18, 2015).
Originating in, starting from, or caused by, the nervous system or nerve impulses. Stedman’s at
Disorder of the spinal nerve roots. Stedman’s at 1622.
Vicodin is indicated for the relief of moderate to moderately severe pain. Physician=s Desk
Reference (PDR), 529 (63rd Ed. 2009).
Gabapentin is indicated for the treatment of nerve pain. See WebMD,
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Communication from Dr. Houchin’s office reveals that Taylor did not undergo the bone scan, but
called Dr. Houchin for pain medication refills on several occasions. (Tr. 271-76.) Taylor
presented on February 23, 2011, with complaints of ringing in his ears and thyroid issues. (Tr.
269.) He admitted to “using a lot of Vicodin and alcohol to deal with general stress issues and
some chronic low back pain,” but had been off of Vicodin for 87 days. Id. Taylor’s
musculoskeletal examination was normal, and no gross neurologic deficits were noted. Id. Dr.
Houchin diagnosed Taylor with hypothyroidism and tinnitus. (Tr. 270.) Taylor returned for
follow-up regarding hypothyroid on December 5, 2011, at which time he reported involuntary
stool leakage since having back surgery. (Tr. 333.) Taylor reported that his chronic back pain
was better since his fusion, although he now experienced intermittent burning pains in his low and
mid back. Id. Upon examination, Taylor had a normal gait and station; no misalignment,
asymmetry, crepitation, or defects; and no focal, motor, or cranial nerve deficit. (Tr. 334.) Dr.
Houchin prescribed Neurontin for Taylor’s back pain. (Tr. 335.) The ALJ found that Dr.
Houchin’s records do not support Taylor’s complaints of disabling orthopedic impairments. (Tr.
The ALJ next discussed the records of Sandra Tate, M.D. (Tr. 27.) Taylor saw Dr. Tate,
an orthopedist, on September 8, 2010, for an independent medical examination. (Tr. 305-07.)
Taylor reported that his lower back symptoms were improved for a while following surgery, but he
is currently having pain higher up, above the operative site. (Tr. 305.) Taylor also reported
difficulties with bowel incontinence since his surgery, although Dr. Tate noted that the record
showed that he first reported this to his physician in March of 2010, after he had fallen. Id. Dr.
Tate noted that Taylor’s February 2010 myelogram was unremarkable. Id. Upon examination,
http://www.webmd.com/drugs (last visited September 18, 2015).
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Dr. Tate noted paravertebral tenderness but no muscle spasm; a slight decrease in range of motion
of the lumbosacral spine; 4/5 strength in the upper and lower extremities; and negative straight-leg
raising. (Tr. 306.) Dr. Tate stated that Taylor’s symptoms of incontinence and increasing back
pain seemed to occur after he fell following his lumbar fusion. Id.
The ALJ also discussed the questionnaire completed by Dr. Buchowski on July 7, 2011.
(Tr. 27.) Dr. Buchowski completed a form, in which he indicated that Taylor has the diagnosis of
isthmic11 spondylolisthesis at L5-S1 and degenerative disc disease at L4-5 and L5-S1. (Tr. 301.)
Dr. Buchowski stated that Taylor has limited range of motion, may have occasional muscle
spasms, but is not required to ambulate with assistance. Id. Dr. Buchowski expressed the
opinion that Taylor was unable to stand, walk, or sit for “extended periods of time.” Id. The ALJ
found that the other medical records are only somewhat consistent with and supportive of Dr.
Buchowski’s opinion. (Tr. 27.) The ALJ stated that even Dr. Buchowski’s limitations, however,
underscore that Taylor’s impairments have medically improved since the comparison point date.
Finally, the ALJ discussed notes from physical therapist Caitlin Weindel. (Tr. 28.) Ms.
Weindel saw Taylor for an assessment on January 26, 2012, at which time he reported mid-back
pain that had been worsening since his surgery. (Tr. 413.) He denied any numbness or tingling
in the lower extremities since surgery. Id. Ms. Weindel noted tenderness to palpation in the
thoracic spine. Id. She stated that Taylor tolerated treatment well, and his pain was slightly
decreased after his session. Id. On February 21, 2012, Ms. Weindel indicated that Taylor had
attended physical therapy for one month, and his mid and upper back pain was significantly
improved. (Tr. 412.) Ms. Weindel stated that Taylor’s cervical spine range of motion was
Anatomical. Stedman’s at 1007.
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within normal limits, and tenderness to palpation was noted in the lower lumbar spine to the left of
L5. Id. Ms. Weindel indicated that Taylor has been able to perform his daily activities without
The medical evidence discussed above supports the ALJ’s determination that Taylor’s
degenerative disc disease no longer met listing 1.04A as of December 31, 2011, and that medical
improvement occurred, because there was no evidence of nerve root compression. Taylor
reported improvement in his lower back pain to Dr. Buchowski beginning on his first
post-operative visit in November 2009. (Tr. 409.) Taylor reported to Dr. Houchin in December
2011 that his low back pain was better following his fusion (Tr. 33) and made the same report to
Dr. Tate in September 2010 (Tr. 305). Physical examinations following Taylor’s surgery
performed by Drs. Buchowski and Houchin revealed a well-healed incision, normal motor
strength throughout the lower extremities, normal sensation, and normal reflexes. (Tr. 409, 247,
278, 276, 269, 334). Dr. Tate noted only paravertebral tenderness and a slight decrease in range
of motion of the lumbosacral spine, with 4/5 strength in the upper and lower extremities, at her
September 2010 examination. (Tr. 306.) Taylor’s February 2010 CT myelogram revealed no
significant neural foraminal or spinal canal narrowing. (Tr. 253.) It is true, as Taylor notes, that
a nerve conduction study he underwent on March 3, 2010 revealed evidence of chronic neurogenic
changes in L4/S1 distribution on the right. (Tr. 296.) It was noted that this could represent
chronic right L4/S1 lumbar radiculopathy. (Tr. 296.) (emphasis added). No definite evidence of
radiculopathy, however, was ever found. Instead, on January 3, 2012, Taylor reported to Dr.
Buchowski that his lower extremity radicular symptoms and low back pain had resolved. (Tr.
The medical evidence does reveal complaints of thoracic back pain, beginning around
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February 2010. (Tr. 247.) At that time, Dr. Buchowski noted no significant tenderness to
palpation over his thoracic spine. (Tr. 407.) Similarly, Dr. Houchin noted that Taylor moved
“pretty good,” and had no gross motor deficit despite his complaints of thoracic back pain in
February 2010. (Tr. 278.) Dr. Houchin indicated that Taylor’s musculoskeletal examination
was normal in February 2011 (Tr. 269), and again in December 2011 (Tr. 334). Taylor underwent
x-rays of the thoracic spine on January 3, 2012, which revealed only “minimal thoracic spine
levocurvature.” (Tr. 419.) Taylor attended physical therapy for his thoracic back pain. The
treatment notes of physical therapist Ms. Weindel revealed that Taylor’s thoracic pain was
“significantly improved” with physical therapy, and that Taylor was able to perform his daily
activities without problems. (Tr. 412.) Thus, Taylor’s complaints of thoracic back pain do not
detract from the ALJ’s finding that Taylor experienced medical improvement in his degenerative
disc disease such that he no longer met Listing 1.04A.
Taylor argues that he did not experience medical improvement because his case is similar
to Example 1 of 20 C.F.R. ' 1594(b)(1). Example 1 provides as follows:
You were awarded disability benefits due to a herniated nucleus pulposus. At the
time of our prior decision granting you benefits you had had a laminectomy.
Postoperatively, a myelogram still shows evidence of a persistent deficit in your
lumbar spine. You had pain in your back, and pain and a burning sensation in your
right foot and leg. There were no muscle weakness or neurological changes and a
modest decrease in motion in your back and leg. When we reviewed your claim
your treating physician reported that he had seen you regularly every 2 to 3 months
for the past 2 years. No further myelograms had been done, complaints of pain in
the back and right leg continued especially on sitting or standing for more than a
short period of time. Your doctor further reported a moderately decreased range
of motion in your back and right leg, but again no muscle atrophy or neurological
changes were reported. Medical improvement has not occurred because there has
been no decrease in the severity of your back impairment as shown by changes in
symptoms, signs or laboratory findings.
Here, unlike the hypothetical claimant in Example 1, Taylor’s myelogram did not show
evidence of a persistent deficit in the lumbar spine following surgery. Rather, Taylor’s February
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2010 myelogram revealed no evidence of neural compression or neural, foraminal, or spinal
narrowing. (Tr. 253.) In addition, Taylor’s treating surgeon did not report that he had a
moderately decreased range of motion in his back or right leg but, instead, reported that he had
normal strength and reflexes and negative straight-leg raising. (Tr. 409, 247). Dr. Burchowski
indicated that Taylor’s myelogram showed no evidence of neural compression, and all of his
implants looked good. (Tr. 249.) He stated that it was “difficult to explain [Taylor’s]
symptoms.” Id. Thus, Taylor’s case is not similar to Example 1.
The ALJ properly found that Taylor experienced medical improvement such that his spinal
impairment no longer met Listing 1.04A. Further, because Taylor’s impairment improved to the
extent that it no longer met a listing, the medical improvement is related to his ability to work.
See 20 C.F.R. ' 404.1594(c)(3)(i).
IV.B. Medical Opinion Evidence
Taylor next argues that the ALJ erred by failing to accord adequate weight to the opinion of
his treating surgeon, Dr. Buchowski, in determining his residual functional capacity (“RFC”).
Taylor also contends that the ALJ did not comply with 20 C.F.R. ' 404.1527 in evaluating Dr.
The ALJ made the following determination regarding Taylor’s RFC:
As of December 31, 2011, the impairments present at the time of the CPD had decreased in
medical severity to the point where the claimant had the residual functional capacity to lift
up to 20 pounds occasionally, sit for seven hours out of an eight-hour work day, and stand
or walk for one hour out of an eight-hour work day. The claimant is unable to climb
ladders, ropes, or scaffolds, as well as kneel, crouch or crawl. The claimant can
occasionally climb ramps or stairs and can occasionally stoop. The claimant is unable to
operate foot control operations. The claimant must avoid all exposure to extreme
vibration, operational control of moving machinery, working at unprotected heights, and
the use of hazardous machinery.
Page 14 of 17
Social Security regulations require the ALJ to consider medical source opinions when
assessing a disability claimant’s RFC. See 20 C.F.R § 404.1527(b). Medical source opinions are
statements from physicians, psychologists, or other acceptable medical sources that reflect
judgments about the nature and severity of the claimant’s impairments. See 20 C.F.R. §
404.1527(a)(2). If a treating source medical opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record, it will be afforded “controlling weight.” 20 C.F.R. § 404.1527(c)(2).
However, such an opinion is not automatically controlling. Brown v. Astrue, 611 F.3d 941, 951
(8th Cir. 2010) (treating source opinion “does not automatically control in the face of other
credible evidence on the record that detracts from that opinion” (internal quotation marks
omitted)). An ALJ may discount the opinion of a treating physician if it is inconsistent with the
physician’s clinical treatment notes. Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010)
(citing Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009)). It is also permissible for an ALJ to
discount a treating physician’s opinion that is inconsistent with the record as a whole. See id. at
931 (citing Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If the doctor’s opinion is
inconsistent with or contrary to the medical evidence as a whole, the ALJ can accord it less
weight.”)). “When an ALJ discounts a treating physician’s opinion, he should give good reasons
for doing so.” Martise v. Astrue, 641 F.3d 909, 925 (8th Cir. 2011) (citation omitted).
The ALJ discussed the questionnaire Dr. Buchowski completed on July 7, 2011, in which
he expressed the opinion that Taylor was unable to stand, walk, or sit for extended periods of time.
(Tr. 27, 301.) The ALJ assigned “little weight” to this opinion, because the opinion was not
supported by the medical record. (Tr. 27.) As previously discussed, Dr. Buchowski’s own
treatment notes reveal that Taylor had normal motor strength throughout the lower extremities,
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normal sensation, normal reflexes, and negative straight-leg raising test. In fact, in January 2012,
after Dr. Buchowski authored his opinion, Dr. Buchowski stated that Taylor’s lower extremity
radicular symptoms and low back pain had “resolved.” (Tr. 407.)
The ALJ also discussed the opinion of consulting orthopedist Dr. Tate. (Tr. 27.) Dr.
Tate expressed the opinion that Taylor was limited from standing or walking for more than one
hour at a time, for a total of three hours per day; lifting more than twenty pounds; repetitive
bending at the waist; and he should avoid heights, stairs, and ladders. (Tr. 306-07.) The ALJ
assigned “great weight” to Dr. Tate’s opinion, because he found it was consistent with the medical
evidence of record. (Tr. 27-28.) Dr. Tate’s opinion is consistent with her examination of Taylor,
in which she noted Tylor had 4/5 strength in the upper and lower extremities, a slight decrease in
his lumbosacral range of motion, and negative straight-leg raising. (Tr. 306.) Dr. Tate’s opinion
is also consistent with the treatment notes of Dr. Buchowski, in which he noted minimal findings
on examination. The ALJ indicated that Dr. Tate’s opinion was the basis of the RFC he
formulated. (Tr. 28.)
The undersigned finds that the ALJ properly resolved conflict among Taylor’s treating and
examining physicians under 20 C.F.R. ' 404.1527 in determining Taylor’s RFC. Because Dr.
Buchowski’s opinion is controverted by other substantial evidence, including his own treatment
notes, the ALJ properly discounted his opinion. See 20 C.F.R. ' 404.1527(c)(4) (“Generally, the
more consistent an opinion is with the evidence of record as a whole, the more weight we will give
to that opinion”); Halverson, 600 F.3d at 930. Significantly, Dr. Buchowski found that Taylor’s
lower extremity radicular symptoms and low back pain had “resolved” by January 2012. (Tr.
407.) Thus, the ALJ articulated good reasons for not assigning controlling weight to Dr.
Buchowski’s July 2011 opinion in assessing Taylor’s RFC. The RFC formulated by the ALJ is
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supported by substantial evidence in the record as a whole.
After determining Taylor’s RFC, the ALJ found that Taylor could not perform his past
relevant work as a carpenter. (Tr. 30.) The ALJ found, based on the testimony of a vocational
expert, that Taylor could perform other work as a telemarketer, cashier, and small products
assembler. (Tr. 30-31.) Thus, the ALJ’s decision finding Taylor no longer disabled is supported
by substantial evidence. See Buckner v. Astrue, 646 F.3d 549, 560-61 (8th Cir. 2011) (“A
vocational expert’s testimony constitutes substantial evidence when it is based on a hypothetical
that accounts for all of the claimant’s proven impairments”).
Accordingly, Judgment will be entered separately in favor of Defendant in accordance with
UNITED STATES MAGISTRATE JUDGE
Dated this 29th day of September, 2015.
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