McReynolds 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 (Docs. 1 , 13 ) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 01/22/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MATTHEW McREYNOLDS,

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

Case No. 4:15CV157 NCC

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 Matthew
McReynolds (Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act (the Act), 42 U.S.C. §§ 401 et seq. Plaintiff has filed a brief in
support of the Complaint. (Doc. 13). Defendant has filed a brief in support of the
Answer.

(Doc. 18).

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 December 5, 2011, Plaintiff filed his application for DIB, alleging a
disability onset date of March 20, 2010.1 (Tr. 11, 133-34). Plaintiff’s application
was denied, and he requested a hearing before an Administrative Law Judge (ALJ).
(Tr. 84, 91-92). After a hearing, by decision dated September 18, 2013, the ALJ
found Plaintiff not disabled. (Tr. 11-21). On November 17, 2014, the Appeals
Council denied Plaintiff’s request for review. (Tr. 1-6). 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

Plaintiff’s previous application for benefits was denied by an ALJ, by decision
dated March 19, 2010. (Tr. 54-62). The Appeals Counsel denied review on
November 8, 2010. (Tr. 66-70).

1

2

must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
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

3

Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ
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

4

65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is
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

5

Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
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

8

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 testified, at the hearing, that he had a heart attack; that he had
oxygen deprivation to his brain; that statements from Dennis Glasock, D.O., that
Plaintiff had done well without lightheadedness or dizziness were incorrect; that
Plaintiff had lightheadedness and dizziness, as well as trouble with memory,
walking, stability, sleeping, and depression; that, in the several years prior to the
hearing, he had not received any care from a psychiatrist or licensed psychologist;
10

and that he had lower back pain, shocks going down his arm from a pinched nerve
in his back, and leg numbness from the pinched nerve. (Tr. 32-34).
The ALJ found that Plaintiff last met the insured status requirements on
December 31, 2011; that Plaintiff had not engaged in substantial gainful activity
from his alleged onset date of March 20, 2010, through the date he was last
insured, December 31, 2011; that Plaintiff had the severe impairments of “residuals
of an internal cardiac defibrillator (re)placement following a fibrillation related
cardiac arrest and degenerative disc disease of the lumbar spine”; and that Plaintiff
did not have an impairment or combination of impairments that met or medically
equaled the severity of a listed impairment. (Tr. 13, 15). The ALJ further found
that Plaintiff had the following RFC: Plaintiff could perform light work except
that he could never climb ropes, ladders or scaffolds, but he could occasionally
climb stairs and ramps, stoop, kneel, and crouch. Further, Plaintiff must avoid all
exposure to unprotected heights, and avoid concentrated exposure to extreme heat,
extreme cold, vibration, and moving and dangerous machinery.

The ALJ

concluded that Plaintiff could perform his past relevant work as a retail sales clerk
as it is generally performed, and that, therefore, Plaintiff was not disabled within
the meaning of the Act. (Tr. 16, 20).
Plaintiff contends that the ALJ’s decision is not based on substantial
evidence for the following reasons: The ALJ did not include sufficient limitations

11

in Plaintiff’s RFC regarding Plaintiff’s physical and mental limitations; the ALJ
gave improper weight to Dr. Glasock’s opinion regarding Plaintiff’s ability to lift
and Plaintiff’s ability to sustain full-time work; the ALJ failed to find that Plaintiff
had a severe mental impairment; and the ALJ gave improper weight to the opinion
of David Peaco, Ph.D. For the following reasons, the court finds that the ALJ’s
decision is based on substantial evidence and is consistent with the Regulations
and case law, and that Plaintiff’s arguments to the contrary are without merit.
A.

Plaintiff’s Credibility:
The court will first consider the ALJ=s credibility determination, as the

ALJ=s evaluation of Plaintiff=s credibility was essential to the ALJ=s determination
of other issues, including Plaintiff’s RFC. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010) (A[The plaintiff] fails to recognize that the ALJ's 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.

12

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
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.
13

Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the ALJ’s determination that Plaintiff was not entirely credible is based
on substantial evidence. (Tr. 15).
First, the ALJ considered that, during the relevant period of March 20, 2010,
Plaintiff’s alleged onset date, through December 31, 2011, the date he was last
insured, Plaintiff had very little medical treatment. See Dipple v. Astrue, 601 F.3d
833, 834 (8th Cir. 2010) (claimant is required to prove that he was disabled prior to
expiration of his insured status; the relevant period is from the alleged onset date
until date last insured). While evidence of a Aclaimant=s condition subsequent to
the expiration of his insured status may bear upon the severity of the claimant=s
condition before the expiration of his [] insured status,@ Basinger v. Heckler, 725
F.2d 1166, 1169 (8th Cir. 1984), a claimant must nonetheless establish that his
disability existed prior to the expiration of his insured status, Martonik v. Heckler,
773 F.2d 236, 237 (8th Cir. 1985). Further, “[w]hile not dispositive, a failure to
seek treatment may indicate the relative seriousness of a medical problem.”
Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). A lack of regular treatment
for an alleged disabling condition detracts from a claimant=s credibility. See Dukes
v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006) (upholding an ALJ’s determination
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. §

14

404.1529(c)(3)(v) (the agency will consider the claimant’s treatment when
evaluating her symptoms).
In regard to the frequency of his treatment, Plaintiff had only one
appointment in 2010, after his alleged onset date, and, at that appointment, on May
10, 2010, Dr. Glasock reported that Plaintiff had done well with his defibrillator,
and that Plaintiff denied having further chest pain since he had been started on
medication a year earlier. (Tr. 514). After being seen on May 10, 2010, Plaintiff
was not seen again until January 7, 2011, when he was seen for right back and rib
pain since falling on the ice on December 24, 2010. (Tr. 444). Plaintiff saw
Daniel Kramer, M.D., on May 20, 2011, seeking a referral to a mental health
provider; he had no other problems on that date. (Tr. 444). On May 24, 2011, Dr.
Glasock reported that, since Plaintiff was last seen, he had no shocks from his
defibrillator and had done well. Also, Plaintiff denied chest pain and shortness of
breath. Notably, Dr. Glasock reported, on this date, that Plaintiff was to return in
six months. (Tr. 513).
On December 12, 2011, Plaintiff was seen for complaints of low back pain
after he had engaged in heavy lifting. (Tr. 443). Further, in April 2013, Dr.
Glasock reported that Plaintiff was not to return for follow-up for one year. (Tr.
618). See Milam v. Colvin, 2015 WL 4491742, at *6 (8th Cir. Jul. 24, 2015)
(claimant’s not seeking medical treatment for her alleged pain for long periods of

15

time detracted from her credibility) (citing Gwathney v. Chater, 104 F.3d 1043,
1045 (8th Cir. 1997) (holding that the claimant's “failure to seek medical assistance
for her alleged . . . impairments contradict[ed] her subjective complaints of
disabling conditions and support[ed] the ALJ's decision to deny benefits”).
Second, as considered by the ALJ Plaintiff made inconsistent statements.
(Tr. 17). In this regard, when asked by the ALJ how far he went in school,
Plaintiff responded that he had a General Education Diploma (GED). After the
ALJ noted that the record reflected that Plaintiff had three years of college,
Plaintiff responded, “[y]eah, a long time ago.” (Tr. 28). When asked by the VE if
he had any training while in college on computer work, Plaintiff responded that he
took Word Perfect and Excel classes and “basic computer which is just [h]ow to
put a keyboard in [a] PC.”

(Tr. 44).

The ALJ noted that this testimony is

disproportionate to the skills Plaintiff necessarily possessed as the Information
Technologies Director for a county government and as an internet sales manager
for a car dealership. (Tr. 17, 29-31). In this regard, Plaintiff testified that, as an
internet sales manager, he sold vehicles online and developed a plan and a web site
for doing so. (Tr. 29). Plaintiff also testified that he worked as a low-voltage
technician for computers, which job required that he make connections with lowvoltage wires. (Tr. 30).

16

Moreover, despite his having gone to college and testifying that he had a
GED, Plaintiff told Dr. Peaco that he only had a tenth grade education and no
GED. (Tr. 622). Plaintiff also told Dr. Peaco that he was unemployed since 2003,
but he testified at the hearing that he was self-employed from 2002 to 2004.
Additionally, Plaintiff told Dr. Peaco that he did not drive despite his mother’s
reporting that he drove and his testifying that he did so. (Tr. 31, 41, 211, 622-23).
Further, the ALJ considered that Plaintiff lacked credibility because he testified
that Dr. Glasock incorrectly reported that he denied lightheadedness or dizziness.
(Tr. 17, 33). Although Plaintiff testified he used a cane when he saw his doctors,
the record is void of any mention of Plaintiff’s use of a cane. When asked by the
ALJ why his medical records made no reference to his use of a cane in the last
couple of years or of his having difficulty with ambulation or balance, Plaintiff
testified that he had “no clue,” and that he had seen his both general physician and
his cardiologist “using a cane.” (Tr. 33).
Additionally, Plaintiff told a vocational counselor, on February 1, 2007, that
his defibrillator gave “him a jolt” when he had “a bad day.” (Tr. 542). The record,
however, reflects that Plaintiff was shocked by his defibrillator on only two
occasions. (Tr. 267, 408, 513, 542). Finally, although Plaintiff testified that he
went to vocational rehabilitation twice, once in 2007 and once in the 1980s, the
record reflects that he also attended vocational rehabilitation in 2009. (Tr. 17, 40,

17

528-29).

Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (holding that

subjective complaints may be discounted if the evidence as a whole is inconsistent
with a claimant’s testimony); Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir. 2006)
(contradictions between a claimant=s sworn testimony and what he actually told
physicians weighs against the claimant=s credibility).
Third, when Plaintiff was asked if he was interested in a part-time job, on
July 31, 2009, he responded that it “would not be worth it to get a job if he ha[d] to
pay more for rent” and that he wanted to wait until he received Social Security
disability benefits before he went to work. (Tr. 529). See Brown v. Chater, 87
F.3d 963, 965 (8th Cir. 1996) (finding financial motivation in seeking disability
benefits is a proper consideration for an ALJ).
Fourth, the ALJ considered that, in his hearing testimony and written
materials and at consultative examinations, Plaintiff appeared to make himself
seem more limited than he really was. (Tr. 20). For example, the ALJ observed
that, at the hearing, Plaintiff responded quickly and accurately to every question
until his representative questioned him about “mental blocks.” (Tr. 20, 37-38). As
considered by the ALJ, at a prior hearing, conducted in January 2012, Plaintiff
testified that he raked leaves, cooked meals, and did laundry and car maintenance,2

Actually, the previous ALJ reported that Plaintiff stated, in a Function Report –
Adult, that he could do laundry, garden, rake leaves, vacuum, and perform car
maintenance; that he did the shopping and prepared meals; and that he drove once
2

18

but, at the June 2013 hearing, Plaintiff testified that he did not cook; that he
became fatigued walking up twelve steps; that concentration “tend[ed] to [] wear
[him] out”; that he had trouble concentrating while watching television; and that, if
he was “somewhere, [he] might recognize the place,” or he might not. (Tr. 20, 33,
35-36, 40, 60).
Fifth, the ALJ considered that a field office employee noted that Plaintiff did
not have any difficulty understanding or communicating during his interview. (Tr.
172). Cf. Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (holding that an ALJ
Ais in the best position@ to assess credibility because he is able to observe a
claimant during his testimony); Johnson v. Apfel, 240 F.3d 1145, 1147-48 (8th Cir.
2001) (AThe ALJ=s personal observations of the claimant=s demeanor during the
hearing is completely proper in making credibility determinations@). Notably, the
observation of the field office employee was only one factor considered by the ALJ
when considering the credibility of Plaintiff’s complaints. See Polaski, 739 at
1332 (“The adjudicator is not free to accept or reject the claimant's subjective

a week despite being advised by his doctor not to drive. (Tr. 60). To the extent the
ALJ in the matter under consideration may have erred when describing Plaintiff’s
testimony at the prior hearing, there is no indication that any such error affected the
outcome of this matter. Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008)
(“There is no indication that the ALJ would have decided differently had he read
the hand-written notation to say ‘walk’ rather than ‘work’ and any error by the ALJ
was therefore harmless.”).
19

complaints solely on the basis of personal observations. Subjective complaints
may be discounted if there are inconsistencies in the evidence as a whole.”).
Sixth, the ALJ considered Plaintiff’s daily activities. Indeed, in a Function
Report – Adult – Third Party, completed in 2012, Plaintiff’s mother reported that
Plaintiff prepared his own meals on a daily basis; that he did laundry and light
housework and mowed the yard, without needing help or encouragement; that
Plaintiff watched television, played video games, and read on a daily basis; that he
spent time with others; that he attended family dinners on a weekly basis; and that,
when Plaintiff went places, he did not need someone to accompany him. (Tr. 21820).
Also, Plaintiff reported, in a Function Report – Adult, dated January 10,
2012, that he made coffee, watched television, played games on a computer,
watched the news, and made dinner; that he used a riding lawnmower, did laundry
and dishes, and picked up letters from the mail without assistance; and that he
shopped in stores for groceries and cleaning supplies. (Tr. 194-97). Further,
Plaintiff told Dr. Peaco that he spent his days playing video games and watching
television.

Indeed, Dr. Peaco reported that Plaintiff was independent in all

activities of daily living. (Tr. 623).
While the undersigned appreciates that a claimant need not be bedridden
before he can be determined to be disabled, a claimant’s daily activities can

20

nonetheless be seen as inconsistent with his subjective complaints of a disabling
impairment and may be considered in judging the credibility of complaints. See
McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (ALJ properly discounted
plaintiff’s credibility where, among other factors, plaintiff “was not unduly
restricted in his daily activities, which included the ability to perform some
cook[ing], tak[ing] care of his dogs, us[ing] a computer, driv[ing] with a neck
brace, and shop[ping] for groceries with the use of an electric cart”). See also
Roberson v. Astrue, 481 F.3d, 1020, 1025 (8th Cir. 2007) (holding that the ALJ’s
denial of benefits was supported based in part because Plaintiff fixed meals, did
housework, shopped for groceries, and visited friends). Moreover, to the extent
Plaintiff urges the court to reweigh the evidence regarding Plaintiff’s daily
activities and draw its own conclusion in this regard, it is not the function of the
court to do so. See Bates v. Chater, 54 F.3d 529, 531-32 (8th Cir. 1995) (“As we
have stated many times, we do not reweigh the evidence presented to the ALJ, and
it is the statutory duty of the ALJ, in the first instance, to assess the credibility of
the claimant and other witnesses.”) (internal citations, punctuation, and quotations
omitted).
Sixth, the court notes that Dr. Peaco reported that Plaintiff’s “functioning
level would improve” if he made a change in his “alcohol dependence.”
Conditions which can be controlled by treatment are not disabling. See Renstrom

21

v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012); Davidson v. Astrue, 578 F.3d 838,
846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009);
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an impairment
can be controlled by treatment, it cannot be considered disabling).
Seventh, when Plaintiff was seen for back pain, a nurse practitioner
recommended rest, heat, analgesics, and muscle relaxants, and gave Plaintiff
instructions on proper lifting techniques. (Tr. 443, 465). See Kamann v. Colvin,
721 F.3d 945, 950-51 (8th Cir. 2012) (conservative treatment and no surgery are
consistent with discrediting a claimant=s allegation of disabling pain); Nelson v.
Sullivan, 966 F.2d 363, 367 (8th Cir. 1992) (the mere use of nonprescription pain
medication is inconsistent with complaints of disabling pain).
Eighth, health care professionals opined that Plaintiff was capable of
working and that he was capable of engaging in substantial activity. Cf. Atkinson
v. Bowen, 864 F.2d 67, 70-71 (8th Cir. 1988) (finding claimant was disabled until
he received vocational training or refused to participate in available training
program). In particular, Karen Shatto, M.A., a Vocational Specialist with the
Center for Head Injury Services, opined that Plaintiff could work as a computer
support specialist, electronic sales person, or alarm installation technician. (Tr.
601). Also, Dr. Glasock suggested Plaintiff attend college classes, stating that he

22

should remain active and that he appeared to function at a reasonable level. (Tr.
564).
Ninth, in addition to Plaintiff’s mother’s description of Plaintiff’s daily
activities, in the Function Report – Adult - Third Party, the ALJ also considered
Plaintiff’s mother’s description of Plaintiff’s ability to engage in work-related
activities, in the Function Report – Adult – Third Party. In this regard, Plaintiff’s
mother never mentioned Plaintiff used a cane. (Tr. 19). Plaintiff’s mother also
reported that Plaintiff did not need to be reminded to go places; that Plaintiff did
not have any problems getting along with family, friends, neighbors, or others; and
that Plaintiff’s alleged disabling conditions did not affect his ability to sit, squat,
bend, talk, stand, hear, use his hands, reach, see, or walk. (Tr. 209-13).
As considered by the ALJ, the testimony of Plaintiff=s mother corroborated
Plaintiff’s testimony, in part, and contradicted it, in part. To the extent Plaintiff
suggests that the ALJ failed to sufficiently consider his mother’s report, the Eighth
Circuit Court of Appeals has frequently criticized the failure of an ALJ to consider
subjective testimony of a claimant’s family. The ALJ in this matter, however, did
consider the report completed by Plaintiff’s mother. In any case, no case directs
that reversal is appropriate where an ALJ fails to specifically consider third party
testimony when the ALJ has discredited the testimony of the claimant. See e.g.,
Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988); Smith v. Heckler, 735 F.2d

23

312, 317 (8th Cir. 1984).

Moreover, the ALJ may discount corroborating

testimony on the same basis used to discredit a claimant’s testimony. See Black v.
Apfel, 143 F.3d 383, 387 (8th Cir. 2006). Thus, where the same evidence that the
ALJ relied upon when discrediting the testimony of Plaintiff would have been the
same evidence which would have supported discrediting the testimony of
Plaintiff=s mother, the ALJ=s failure to address or discount the report of Plaintiff’s
mother is Ainconsequential.@ Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
See also Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996) (holding that an
ALJ=s decision need not be reversed where he failed to consider testimony which
would not have had an effect on the outcome of the case).
Ninth, to the extent Plaintiff argues that the ALJ failed to give proper weight
to test results from the Center for Head Injury Services (Doc. 13 at 12), the court
notes that test results showed that Plaintiff was “proficient in all areas of reading”
and “with addition and subtraction of whole numbers”; that he demonstrated
difficulties with multiplication, division, fractions, and percentages; that Plaintiff
was in the ninety-fifth percentile in both vocabulary and reading comprehension;
and that, on the Woodcock-Johnson III Test of Cognitive Ability, Plaintiff had an
average performance compared to others at “his grade level in two-year colleges.”
(Tr. 612-14).

24

Notably, the ALJ did consider that the Center for Head Injury Services
tested Plaintiff “and found credit hours to prepare him for [a] certification exam”;
that it conducted a “comprehensive vocational evaluation” of Plaintiff; that the
testing demonstrated that Plaintiff had “strengths in reading comprehension,
vocabulary, mathematical problem solving skills, fluid reasoning, and computer
knowledge”; and that based on this assessment, Plaintiff was sent to St. Charles
Community College. After considering these factors, the ALJ concluded that
“there [was] no credible, substantive, objective medical evidence that [Plaintiff]
[was] limited more than mildly.” (Tr. 15). See Social Security Ruling (SSR) 067p(4), 1996 WL 374186, at *1 (July 2, 1996) (“In determining the credibility of the
individual's statements, the adjudicator must consider the entire case record,
including the objective medical evidence,” although disability determination
“cannot be made solely on the basis of objective medical evidence.”). As such, the
court finds that the ALJ gave proper weight to test results from the Center for Head
Injury Services; that these test results were not inconsistent with the ALJ’s
credibility determination or with his ultimate determination of Plaintiff’s RFC; and
that Plaintiff’s arguments to the contrary are without merit.
B.

The Severity of Plaintiff’s Mental Impairments:
The court first notes that 20 C.F.R. Ch. lll, Pt. 404, Supt. P, App.1 § 12.00(a)

states, in relevant part, that:

25

The evaluation of disability on the basis of mental disorders requires
documentation of a medically determinable impairment(s),
consideration of the degree of limitation such impairment(s) may
impose on your ability to work, and consideration of whether these
limitations have lasted or are expected to last for a continuous period
of at least 12 months.
If a mental impairment is found, the ALJ must then analyze whether certain
medical findings relevant to ability to work are present or absent. 20 C.F.R.§
404.1520a(b)(1).

The procedure then requires the ALJ to rate the degree of

functional loss resulting from the impairment in four areas of function which are
deemed essential to work. 20 C.F.R. § 404.1520a(c)(2). Those areas are: (1)
activities of daily living; (2) social functioning; (3) concentration, persistence or
pace; and (4) deterioration or decompensation in work or work-like settings. 20
C.F.R. § 404.1520a(c)(3).
The limitation in the first three functional areas of activities of daily living
(social functioning and concentration, persistence, or pace) is assigned a
designation of either Anone, mild, moderate, marked, [or] extreme.@ 20 C.F.R. §
404.1520a(c)(4). The degree of limitation in regard to episodes of decompensation
is determined by application of a four-point scale: A[n]one, one or two, three, four
or more.@ Id. When Athe degree of []limitation in the first three functional areas@ is
Anone@ or Amild@ and Anone@ in the area of decompensation, impairments are not
severe, Aunless the evidence otherwise indicates that there is more than a minimal
limitation in [a claimant=s] ability to do basic work activities.@
26

20 C.F.R. §

404.1520a(d)(1). When it is determined that a claimant=s mental impairment(s) are
severe, the ALJ must next determine whether the impairment(s) meet or are
equivalent in severity to a listed mental disorder. This is done by comparing the
medical findings about a claimant=s impairment(s) and the rating of the degree of
functional limitation to the criteria of the appropriate listed mental disorder. See
20 C.F.R. § 404.1520a(d)(2). If it is determined that a claimant has Aa severe
mental impairment(s) that neither meets nor is equivalent in severity to any
listing,@ the ALJ must then assess the claimant=s RFC.

20 C.F.R. §

404.1520a(d)(3).
The court has set forth above, in regard to Plaintiff’s credibility, his
activities of daily living, as considered by the ALJ. Further, the ALJ found that
Plaintiff had only mild limitations in his activities of daily living, as he was
independent in most areas, as confirmed by the above discussed reports from
Plaintiff’s mother and Dr. Peaco. The court finds that the ALJ’s determination that
Plaintiff had only mild limitations in his activities of daily living is based on
substantial evidence.
In regard to Plaintiff’s limitations in the area of social functioning, the ALJ
found that Plaintiff had mild limitations.

(Tr. 14).

In this regard, the ALJ

considered that Plaintiff played video games and occasionally visited his brother to
play video games. (Tr. 14, 203, 623). Additionally, Plaintiff’s mother reported

27

that Plaintiff spent time visiting with others and attending family dinners, and that
Plaintiff had no difficulty getting along with others. (Tr. 220). Further, Dr. Peaco
reported that Plaintiff had only moderate limitations in regard to interacting with
the public, supervisors, and co-workers. (Tr. 620). The court finds, therefore, that
the ALJ’s determination that Plaintiff had only mild limitations in the area of social
functioning is based on substantial evidence.
As for the area of concentration, persistence, or pace, the ALJ found that
Plaintiff had a mild limitation. (Tr. 15). In particular, the ALJ considered that the
Center for Head Injury Services found that Plaintiff could complete certification
courses for information technology positions. The ALJ also considered that it was
reported that Plaintiff had strengths in reading comprehension, vocabulary,
mathematical problem solving skills, fluid reasoning, and computer knowledge,
and that Plaintiff testified that his short-term memory was improving. Indeed, the
record reflects that Plaintiff had been sent to take college courses. (Tr. 15, 534,
536).

Further, it was recommended that Plaintiff receive Vocational

Rehabilitation, and it was reported that Plaintiff acknowledged that he would be
able to work as a network technician even though he did not believe he could work
at the level he previously worked in the computer field. (Tr. 534).
Also, in regard to Plaintiff’s allegations of problems with his memory, Dr.
Glasock reported, in July 2007, that Plaintiff could “function at a reasonable level,”

28

despite having some degree of mental impairment. (Tr. 564). Also, Dr. Peaco
reported that Plaintiff had only a mild limitation in regard to understanding and
remembering simple instructions, and that he had only moderate limitations in
regard to carrying out simple instructions, making judgments on simple workrelated decisions, and understanding and remembering “complex instructions.”
(Tr. 519). The court finds, therefore, that the ALJ’s determination that Plaintiff
had only a mild limitation in the area of concentration, persistence, or pace is based
on substantial evidence.
As for episodes of decompensation, the ALJ found that Plaintiff had
experienced no episodes of decompensation which had been of an extended
duration; that Plaintiff never had any mental health treatment on an inpatient or
outpatient basis, see Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006)
(upholding an ALJ’s determination 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); and that, until
his representative asked for memory testing, Plaintiff never complained of any
need for mental health intervention. (Tr. 15). As such, the court finds that the
ALJ’s determination in regard to episodes of decompensation is based on
substantial evidence.

29

Consistent with the Regulations, because the ALJ found that Plaintiff’s
medically determinable impairments caused no more than mild limitations and that
Plaintiff experienced no episodes of decompensation which had been of an
extended duration, the ALJ found that Plaintiff’s alleged mental impairment was
not severe. 20 C.F.R. §§ 404.1520a(c)(4) and 404.1520a(d)(1). As such, the court
finds that the ALJ’s determination that Plaintiff’s mental impairment was not
severe is based on substantial evidence and is consistent with the Regulations and
case law.
C.

Dr. Peaco’s Opinion:
Dr. Peaco conducted a Psychological Evaluation of Plaintiff, on June 25,

2013, pursuant to which he reported the following: the pace and tone of Plaintiff’s
speech were normal; his flow of thinking was normal; his mood was irritable; his
orientation was intact; his delayed memory appeared to be below average; his
working memory appeared to be about average; and his general information and
vocabulary were below average. Dr. Peaco concluded that Plaintiff was able to
understand instructions but might have some difficulty remembering instructions;
that his persistence in completing tasks was profoundly impaired; that his
concentration and social functioning were markedly impaired; and that his capacity
to adjust to and cope with the world around him was moderately impaired due to
“some apparent memory impairment, mild depression, mild anxiety, and excessive

30

alcohol usage.” He also concluded that Plaintiff could manage funds correctly and
in his own best interest. Dr. Peaco further found that Plaintiff had a Global
Assessment of Functioning (GAF) of 60.3 (Tr. 622-24).
On June 27, 2013, Dr. Peaco also completed a Medical Source Statement of
Ability to Do Work-Related Activities (Mental), in which Dr. Peaco opined that
Plaintiff had mild limitations in regard to understanding and remembering simple
instructions. Dr. Peaco also found that Plaintiff had moderate limitations in regard
to carrying out simple instructions, making judgments on simple work-related
decisions, understanding and remembering complex instructions, interacting

Global assessment of functioning (GAF) is the clinician=s judgment of the
individual=s overall level of functioning, 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) (quoting Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. 2000) (alterations in original).
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).
3

31

appropriately with the public, supervisors, and co-workers, and responding
appropriately to usual work situations and to changes in the routine work setting.
He further found that Plaintiff had marked limitations in regard to making
judgments on complex work-related decisions and carrying out complex
instructions.

Finally, Dr. Peaco opined that Plaintiff’s alcohol dependence

contributed to his limitations and that Plaintiff’s functioning level would improve
if he made changes in this regard. (Tr. 619-20).
The ALJ stated that “[b]ecause of the many inconsistencies in [Plaintiff’s]
reports to Dr. Peaco, the functional limitations that [Dr. Peaco] reported [were] not
given significant weight.” (Tr. 19). Plaintiff contends that the ALJ gave improper
weight to Dr. Peaco’s opinion upon determining Plaintiff’s RFC and that Dr. Peaco
verified the mental limitations which Plaintiff alleged he had. (Doc. 13 at 12-13).
For the following reasons, the court finds that the ALJ gave proper weight to Dr.
Peaco’s opinion and that the ALJ’s decision, in this regard, is based on substantial
evidence and is consistent with the Regulations and case law.
First, as discussed, in part, in regard to Plaintiff’s credibility, Plaintiff
incorrectly told Dr. Peaco that he only had a tenth grade education, attended
special education classes, was unemployed since 2003, and did not drive a car.
(Tr. 622-23). As such, Dr. Peaco’s opinion was based on inaccurate information.

32

Second, Dr. Peaco’s conclusions were based, at least in part, on Plaintiff’s
self-reporting, including Plaintiff’s reporting that he had “severe problems with
forgetfulness and delayed memory functioning since his heart attack”; that he was
“very inactive” during the day; that he had a “very limited social life; that he did
not do any chores during the day; that his “persistence in completing tasks [was]
profoundly impaired”; and that “he was unable to continue working due to his
physical problems and poor memory.” (Tr. 623). A physician’s opinion is not
entitled to controlling weight when it is based, in part, on a claimant’s subjective
complaint. See Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir. 2014) (“The
[commissioner] was entitled to give less weight to [the treating doctor’s] opinion,
because it was based largely on [the claimant’s] subjective complaints rather than
on objective medical evidence.”) (quoting Kirby v. Astrue, 500 F.3d 705, 709 (8th
Cir. 2007)); 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”).
Third, as discussed above, Dr. Peaco reported that Plaintiff’s mental health
symptoms would improve if he eliminated his alcohol dependence. Significantly,
Dr. Peaco reported that, at the time of his evaluation of Plaintiff, Plaintiff was
consuming “about 8 to 10 drinks per day,” and that the “only alcohol treatment
programs in which [Plaintiff] ha[d] participated were as conditions of probation

33

following DWI offenses.” (Tr. 622). See Renstrom, 680 F.3d at 1066; Davidson,
578 F.3d at 846.
Fourth, Dr. Peaco reported that Plaintiff had a GAF of 60 which represents
only a “moderate” limitation in overall functioning. Although Athe Commissioner
has declined to endorse the GAF scale for >use in the Social Security and SSI
disability programs,= . . . GAF scores may still be used to assist the ALJ in
assessing the level of a claimant's 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). In conclusion, the court finds that the weight the ALJ gave to Dr.
Peaco’s opinion by the ALJ is based on substantial evidence and is consistent with
the Regulations and case law.
D.

Dr. Glasock’s Opinion:
In 2007, Dr. Glasock completed a Work Capacity Form, on which he opined

that Plaintiff could occasionally lift 20 pounds and frequently lift no weight; that
Plaintiff could stand and/or walk 6 hours in an 8-hour workday; that he could
occasionally climb, balance, stoop, kneel, crouch, crawl, squat, twist, and bend;
and that he had unlimited ability to handle (gross manipulation), handle (fine

34

manipulation), feel, grasp, and grip. Dr. Glasock also reported that Plaintiff should
avoid even moderate exposure to extreme temperatures and working with
machinery, and avoid all exposure to chemicals, vibration, and heights. (Tr. 35758).
On November 6, 2008, Dr. Glasock completed a Physician’s Assessment for
Social Security Disability Claim, in which he reported that Plaintiff had idiopathic
ventricular fibrillation with prior cardiac arrest, anoxic encephalopathy, and
memory problems; that he had a defibrillator implant in 2006; that he had
continued episodes of ventricular fibrillation with device shocks in 2006 and 2007;
that Plaintiff had difficulty remembering medication and appointments which was
consistent with anoxic encephalopathy; that Plaintiff’s treatment included a
defibrillator and medication; that Plaintiff had “some communication impairment
due to memory deficit”; and that Plaintiff was not capable of sedentary work due to
his “attention and memory deficit.”

Also, Dr. Glasock opined, based on the

combined effects of his medical impairments, including a memory and attention
deficit, that Plaintiff was not capable of maintaining sustained employment at the
sedentary level. (Tr. 408).
On November 20, 2008, Dr. Glasock signed notes, prepared by his nurse
practitioner, indicating that Plaintiff denied dizziness or shocks from his device;
that Plaintiff’s device was operating properly; and that Plaintiff had no ventricular

35

episodes since his last examination. Plaintiff was asked to return in one year. (Tr.
410). On January 27, 2009, Dr. Glasock reported, in a letter, that Plaintiff had
done well until his recent reports of chest pain, but noted that medications helped.
(Tr. 409). A February 2009 cardiac catheterization showed mild lesions in the left
anterior descending artery, but normal blood flow. (Tr. 405, 420). On December
11, 2009, Dr. Glasock reported that it was still his opinion that the combination of
Plaintiff’s symptoms would prevent him from engaging in sustained full-time
sedentary employment. (Tr. 407).
On May 10, 2010, Dr. Glasock reported that Plaintiff had done well with his
defibrillator; that, since Plaintiff had been placed on medication, he denied further
chest pain; and that, on examination, Plaintiff’s heart was “regular,” and he had no
edema in his extremities. (Tr. 514). On January 4, 2012, Dr. Glasock reported that
Plaintiff received a defibrillator, in February 2006, and that he had been last
shocked in 2007, “which was appropriate and converted his rhythm.”

On

examination, Plaintiff was “in no obvious distress,” his heart was “regular,” and he
had no edema in his extremities. (Tr. 510).
On March 15, 2012, Dr. Glasock reported that Plaintiff had a defibrillator
implanted in February 2006; that at that time Plaintiff had anoxic brain injury and
was unable to work; that Plaintiff’s device was electively replaced in March 2,
2012; and that, since Plaintiff’s device was replaced on March 2, 2012, he had

36

done well without lightheadedness, dizziness, or shocks from the device.

On

examination, Plaintiff’s heart was “regular,” and he had no edema in his
extremities.

Dr. Glasock reported that Plaintiff’s device was functioning

appropriately, and that Plaintiff would be seen in one year unless he had further
difficulty. (Tr. 617).
On April 23, 2013, Dr. Glasock reported that Plaintiff was in “no obvious
distress”; that he had no shocks from his defibrillator since he was last seen; that
Plaintiff denied dizziness; that Plaintiff’s respiration was non labored; that his heart
was without murmur, rub, or gallop; that Plaintiff had no clubbing, cyanosis, or
edema in his extremities; that Plaintiff was alert and oriented; and that Plaintiff
had appropriate mood and affect and no focal motor or sensory deficits. Plaintiff
was to continue his medical regiment and was to be seen for follow-up in one year.
(Tr. 618).
The ALJ considered Dr. Glasock’s records and reports, but declined to give
Dr. Glasock’s opinion that Plaintiff could not perform all work activity controlling
weight. (Tr. 19). Indeed, despite Dr. Glasock’s opining that Plaintiff could lift 20
pounds occasionally and no weight frequently, the ALJ found that Plaintiff could
perform light work, which involves lifting and carrying 20 pounds occasionally
and 10 pounds frequently. (Tr. 16). Plaintiff argues that the ALJ gave improper
weight to Dr. Glasock’s opinion upon determining Plaintiff’s RFC, arguing

37

specifically that the ALJ failed to explain why he discounted Dr. Glasock’s opinion
regarding Plaintiff’s ability to lift frequently. (Doc. 13 at 8-11). For the following
reasons, the court finds that the ALJ’s decision, in this regard, is based on
substantial evidence and is consistent with the Regulations and case law.
First, the ALJ acknowledged that, as Plaintiff’s treating doctor, Dr.
Glasock’s opinion was entitled to controlling weight unless it was not supported by
the record or unless there was substantial contradictory evidence. (Tr. 19). See
Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (AA treating physician's opinion
is given controlling weight if it >is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [a claimant's] case record.=@) (quoting 20 C.F.R. '
404.1527(d)(2) (2000)).
Second, the court notes that Dr. Glasock opined that Plaintiff could lift no
weight frequently in 2007 and 2008, which was prior to Plaintiff’s alleged onset
date for purposes of Plaintiff’s current application for benefits.
Third, as stated above, the relevant period commenced on Plaintiff’s alleged
onset date of March 20, 2010, and ended on December 31, 2011. On May 10,
2010, in the first medical record after Plaintiff’s alleged onset date, Dr. Glasock
reported that Plaintiff was doing well, with no chest pain. (Tr. 514). One year
later, on May 24, 2011, pursuant to Plaintiff’s yearly visit with Dr. Glasock, Dr.

38

Glasock reported that Plaintiff was doing well and had not been shocked by his
device since 2007. (Tr. 513). Also, during the relevant period, as discussed above,
Dr. Glasock reported that Plaintiff denied chest pain, had a regular heart rate, had
no edema, was in no distress, had done better after his defibrillator was replaced in
March 2012, and had no motor or sensory deficits. Cf. Hacker v. Barnhart, 459
F.3d 934, 937 (8th Cir. 2006) (holding that where a treating physician=s notes are
inconsistent with his or her RFC assessment, controlling weight is not given to the
RFC assessment).
Fourth, consistent with Dr. Glasock’s opinion, the ALJ found that Plaintiff
should avoid all exposure to heights and moderate exposure to temperature
extremes and machinery. Moreover, the ALJ limited Plaintiff to light work, which
was consistent with Dr. Glasock’s opinion that Plaintiff could lift and carry twenty
pounds occasionally. See Choate v. Barnhart, 457 F.3d 865, 869-70 (8th Cir.
2006) (holding that the limitations imposed by the ALJ as reflected in the
claimant=s RFC demonstrating that the ALJ gave some credit to the opinions of the
treating physicians); Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (AIn
assessing [the claimant=s] RFC, the ALJ determined that [the claimant] could sit for
a total of six hours and stand for a total of two hours, but was limited to sedentary
work. This in itself is a significant limitation, which reveals that the ALJ did give
some credit to [the treating doctor=s] medical opinions.@).

39

Fifth, to the extent Dr. Glasock opined that Plaintiff could not frequently lift
any weight, he did so by checking a box on a form. See Johnson v. Astrue, 628
F.3d 991, 992 (8th Cir. 2011) (holding that checkmarks on a Medical Source
Statement are Aconclusory opinions@ which can be discounted if contradicted by
other objective medical evidence); Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
2010) (A>The checklist format, generality, and incompleteness of the assessments
limit [the assessments'] evidentiary value.= . . . Indeed, >[a] treating physician's
opinion deserves no greater respect than any other physician's opinion when [it]
consists of nothing more than vague, conclusory statements.=@) (quoting
Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) and Piepgras v.
Chater, 76 F.3d 233, 236 (8th Cir. 1996)).
Sixth, as considered by the ALJ, Dr. Glasock’s opinion that Plaintiff’s
problems were due to a memory impairment was based, at least in part, on
Plaintiff’s own reports of forgetting appointments and medications, and Dr.
Glasock noted that he would defer Plaintiff’s complaints of a memory impairment
to a neurologist. (Tr. 408). See Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir.
2014) (“The [commissioner] was entitled to give less weight to [the treating
doctor’s] opinion, because it was based largely on [the claimant’s] subjective
complaints rather than on objective medical evidence.”); Renstrom v. Astrue, 680
F.3d 1057, 1064-65 (8th Cir. 2012) (affirming where ALJ did not give controlling

40

weight to opinion of treating doctor, where doctor’s opinion was “largely based on
[claimant’s] subjective complaints). Nonetheless, as considered by the ALJ, the
record does not reflect that Plaintiff was sent for a neurological work-up for his
reported memory deficit, and the only objective testing was performed by the
Center for Head Injury Services. Pursuant to this testing, it was concluded that
Plaintiff could take courses for certification in several occupations. (Tr. 606-16).
Likewise, Dr. Glasock even opined, on July 19, 2007, that there was “no
contraindication to [Plaintiff’s] attending any college educational classes,” and that
Plaintiff should stay active. (Tr. 564).
Seventh, the ALJ considered objective test results when determining the
weight to be given Dr. Glasock’s opinion regarding Plaintiff’s ability to lift. In
particular, a January 20, 2009 nuclear exercise stress test showed that Plaintiff had
good exercise tolerance and that he had achieved at least eighty-five percent of the
maximum predicated heart rate. (Tr. 402, 422-23). When Plaintiff had an x-ray
due to back and rib pain in January 2011, the x-rays revealed no fracture. (Tr.
457). Also, a February 8, 2012 echocardiogram showed normal left ventricular
ejection fraction with a moderate increase in wall thickness and mild to moderate
dilation in the right ventricle and atrium. (Tr. 488, 508-509).
Eighth, to the extent Dr. Glasock opined that Plaintiff could not frequently
lift ten pounds, Plaintiff fails to point to any evidence of record to support such a

41

limitation. Notably, when Plaintiff complained of back pain on December 12,
2011, he was given instructions on how to properly lift and told to avoid heavy
lifting. It was noted on this date, however, that Plaintiff complained of having the
back pain only for one day and that the “precipitating factor[]” was “recent heavy
lifting.” (Tr. 443, 465).
Tenth, when Daniel Kramer, M.D., referred Plaintiff to a mental health
provider in May 2011, he noted that Plaintiff had no other problems and noted no
abnormalities in regard to Plaintiff’s neck and extremities. (Tr. 465-66).

D.

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).
42

As stated above, the ALJ found that Plaintiff had the following RFC:
Plaintiff could perform light work except that he could never climb ropes, ladders
or scaffolds, but he could occasionally climb stairs and ramps, stoop, kneel, and
crouch. Further, Plaintiff must avoid all exposure to unprotected heights, and
avoid concentrated exposure to extreme heat, extreme cold, vibration, and moving
and dangerous machinery. Plaintiff contends that the medical evidence does not
support the ALJ’s RFC determination. For the following reasons, the court finds
Plaintiff’s argument without merit and that the ALJ’s RFC determination is based
on substantial evidence and is consistent with the Regulations and case law.
First, the ALJ accommodated Plaintiff’s degenerative disc disease and heartrelated issues by limiting the amount of walking and lifting he could do, as well as
his exposure to temperature extremes, vibration, and dangerous machinery.
Second, only after considering the medical evidence of record, did the ALJ
determine Plaintiff’s RFC. Notably, Dr. Glasock’s findings, upon examination of
Plaintiff, as opposed to his RFC assessments, support the ALJ’s RFC
determination that Plaintiff could engage in light work with the specified
restrictions. As discussed above, after Plaintiff’s alleged onset date, Dr. Glasock
reported that Plaintiff’s heart was regular; that he had not been shocked since 2007,
at which time his rhythm was converted; that Plaintiff was in no obvious distress;
that, since defibrillator replacement in March 2012, Plaintiff did not have

43

lightheadedness, dizziness, or shocks from the device; that he was in no obvious
distress; that Plaintiff’s heart was without murmur, rub, or gallop; that Plaintiff had
no extremity edema; and that Plaintiff was alert and oriented. (Tr. 510, 514, 61718). See Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001) (A>Some medical
evidence,= Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam), must
support the determination of the claimant's RFC, and the ALJ should obtain
medical evidence that addresses the claimant=s >ability to function in the
workplace,= Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).@).
Third, to the extent Plaintiff argues that the ALJ had no basis upon which to
evaluate Plaintiff’s mental impairments for purposes of Plaintiff’s RFC because he
discounted Dr. Peaco’s opinion, the ALJ did, in fact, have Dr. Glasock’s records
and records from the Center for Head Injury Services, as discussed above, as a
basis for determining the extent of Plaintiff’s alleged mental impairments.
Fourth, to the extent Plaintiff suggests that the ALJ should have obtained a
consultative psychological examination of Plaintiff, an ALJ is not required to order
a consultative examination where there is no crucial issue in the record which
requires development. Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013)
(quoting Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994) (holding that “an ALJ
is permitted to issue a decision without obtaining additional medical evidence so
long as other evidence in the record provides a sufficient basis for the ALJ’s

44

decision” and that it is the claimant’s burden to prove disability and provide
credible evidence regarding his alleged impairment); Myers v. Colvin, 721 F.3d
521, 527 (8th Cir. 2013); 20 C.F.R. §§ 404.1512(e), 416.912(e). Indeed, the
record, in the matter under consideration, was fully developed in regard to all of
Plaintiff’s alleged impairments.
Fifth, to the extent Plaintiff argues that the ALJ should have included greater
limitations in his RFC beyond those which the ALJ assigned to Plaintiff, an ALJ is
required only to include those limitations which he finds credible. Cf. Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (AThe ALJ's hypothetical question to the
vocational expert needs to include only those impairments that the ALJ finds are
substantially supported by the record as a whole.@) (quoting Lacroix v. Barnhart,
465 F.3d 881, 889 (8th Cir. 2006)).
Sixth, to the extent Plaintiff suggests that the ALJ’s RFC determination is
not based on substantial evidence because it does not mirror the opinion of a
single source, in formulating a claimant’s RFC, an “ALJ is not required to rely
entirely on a particular physician’s opinion or choose between the opinions of any
of the claimant’s physicians.” Martise, 641 F.3d at 927.
Seventh, the court notes that the ALJ’s RFC determination is precise as it
addresses Plaintiff’s restrictions and the requirements of light work. Further, upon
determining Plaintiff’s RFC, the ALJ moved analytically from ascertaining the true

45

extent of Plaintiff’s impairments to determining the kind of work he could perform
despite his impairments. See Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir.
1995).
Eighth, the ALJ considered that Plaintiff’s contradictory statements, as
discussed above in regard to Plaintiff’s credibility, were of “no probative value in
determining his functional capacity.” (Tr. 20). Given that that the court has found
the ALJ’s credibility determination is based on substantial evidence, the court finds
that the ALJ’s determination not to give controlling weight to Plaintiff’s statements
regarding the extent of his functional limitations is based on substantial evidence.
In conclusion, the court finds that the ALJ sufficiently considered all
relevant evidence of record, including Plaintiff’s testimony, the reports and
assessments of Plaintiff’s treating and consulting doctors, and the Function Report
- Adult - Third Party, completed by Plaintiff’s mother, upon determining Plaintiff’s
RFC, and that substantial evidence in the record, including objective medical
evidence, supports the ALJ’s RFC determination. Further, the court finds that the
ALJ based his opinion on all the credible evidence of record.

Only after

ascertaining the extent of Plaintiff’s impairments did the ALJ determine Plaintiff’s
RFC. See Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). Indeed, the ALJ
first identified Plaintiff’s functional limitations and restrictions, and then assessed
his work-related abilities on a function-by-function basis. See Masterson, 363 F.3d

46

at 737; Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). As such, the court
finds that the ALJ’s RFC determination is based on substantial evidence and is
consistent with the Regulations and case law.
The ALJ posed a hypothetical to a VE which described a person of
Plaintiff’s age and with Plaintiff’s RFC, education, and work experience. (Tr. 44).
To the extent Plaintiff suggests that the ALJ should have included limitations in the
hypothetical beyond those which the ALJ included (Doc. 13 at 10-11), an ALJ
posing a hypothetical to a VE is not required to include all of a claimant=s
limitations, but only those which he finds credible. See Martise, 641 F.3d at 927;
Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[T]he ALJ was not
obligated to include limitations from opinions he properly disregarded.”).

A

hypothetical is sufficient if it sets forth the impairments which are accepted as true
and credible by the ALJ. See Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999)
(holding that the ALJ need not include additional complaints in the hypothetical
not supported by substantial evidence). The court has found above that the ALJ’s
RFC determination is based on substantial evidence. The court finds, therefore,
that the hypothetical which the ALJ posed to the VE is based on substantial
evidence and is consistent with the Regulations and case law.
In response to the ALJ’s hypothetical, the VE testified that the described
individual could perform Plaintiff’s past relevant work as a retail sales clerk. (Tr.

47

44-45). As explained by the ALJ, Plaintiff worked as a retail sales clerk in excess
of three years, and he earned an amount above the substantial gainful activity level
each year he worked as a retail sales clerk. (Tr. 20, 144, 150-51). See 20 C.F.R. §
404.1565(a) (Apast relevant work@ is defined as Awork experience [which] . . . was
done within the last fifteen years, [which] lasted long enough for [the claimant] . . .
to learn to do it, and was substantial gainful activity.@).

Based on the VE’s

testimony that Plaintiff could perform his past relevant work, the ALJ properly
found Plaintiff not disabled. See Bowen v. City of New York, 476 U.S. 467, 471
(1986) (holding that if a claimant is found able to perform the duties of his past
relevant work, then he is considered not disabled and, therefore, ineligible for
benefits); Martin v. Sullivan, 901 F.2d 650, 652 (8th Cir. 1990). Because the
hypothetical which the ALJ posed to the VE, and upon which the ALJ relied,
precisely set forth all of Plaintiff’s physical and mental impairments, the VE’s
testimony constitutes substantial evidence supporting the ALJ=s decision. Martise,
641 F.3d at 927 (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
48

evidence when it is based on an accurately phrased hypothetical capturing the
concrete consequences of a claimant=s limitations). In conclusion, the court finds
that the ALJ’s determination that Plaintiff is not disabled is based on substantial
evidence and is 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 (Docs. 1, 13) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 22nd day of January 2016.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

49