Hemby v. Colvin

Filing 26

MEMORANDUM AND ORDER....Hemby's allegations that the ALJ erred are unavailing.Hemby was afforded a full and fair opportunity to present his claims, and the ALJs ultimate decision did not fall outside the available zone of choice. Buckner, 646 F.3d at 556. It must therefore be affirmed. Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/10/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHAD C. HEMBY,
Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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) Case No. 4:15 CV1471 ACL
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MEMORANDUM AND ORDER
Plaintiff Chad C. Hemby brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Hemby’s multiple severe
impairments, he was not disabled as he had the residual functional capacity (“RFC”) to perform
jobs that exist in significant numbers in the national economy.
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.
For the reasons discussed below, the decision of the Commissioner will be affirmed.

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
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I. Procedural History
Hemby protectively filed his applications for DIB and SSI on June 14, 2012, and October
1, 2012, respectively. (Tr. 278, 280.) He alleged that he became disabled on December 15,
2011, due to depression, anxiety, lupus, back surgery in July 2012, and hip surgery in March 2012.
(Tr. 278, 324.) Hemby’s claims were denied initially. (Tr. 169-75.) Following an
administrative hearing, Hemby’s claims were denied in a written opinion by an ALJ, dated April
14, 2014. (Tr. 53-71.) Hemby then filed a request for review of the ALJ’s decision with the
Appeals Council of the Social Security Administration (SSA), which was denied on August 20,
2015. (Tr. 1-6.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.
See 20 C.F.R. '' 404.981, 416.1481.
In the instant action, Hemby first argues that the ALJ erred “in failing to properly evaluate
the medical opinion evidence of treating orthopaedic surgeons Dr. Lange and Dr. Rogers in that
the ALJ did not point to any conflicting medical opinion based on better information nor did the
ALJ point to any specific inconsistency between the opinions of Dr. Lange and Dr. Rogers and the
medical record and therefore the decision of the ALJ was not supported by substantial evidence on
the whole record and must be reversed and benefits awarded to the Plaintiff.” (Doc. 17 at 16.)
Hemby next contends that the ALJ erred in “finding that Plaintiff could, during the relevant period,
perform the jobs of document preparer, dowel inspector, and patcher in that the vocational expert
testimony as to the requirements of those jobs was inconsistent with the residual functional
capacity as found by the ALJ and that therefore the decision of the ALJ to deny Plaintiff’s claim
for benefits was not supported by substantial evidence.” Id. at 21.

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II. The ALJ=s Determination
The ALJ stated that Hemby meets the insured status requirements of the Social Security
Act through December 31, 2017. (Tr. 58.) The ALJ found that Hemby had not engaged in
substantial gainful activity since his alleged onset date of December 15, 2011. Id.
In addition, the ALJ concluded that Hemby had the following severe impairments:
degenerative disc disease and depression. Id. The ALJ found that Hemby did not have an
impairment or combination of impairments that meets or equals in severity the requirements of any
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 59.)
As to Hemby’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to lift up
to 10 pounds occasionally, stand and/or walk for approximately two
hours per eight hour day, and sit for approximately six hours per
eight hour day. The claimant is able to sit for two hours at a time,
but will need to stand or walk for no more than five minutes before
resuming a seated position with normal breaks. The claimant can
never climb ladders, ropes or scaffolds; can never climb ramps or
stairs; can never kneel, crouch, or crawl; can occasionally stoop and
balance; and must avoid hazardous machinery which is defined as
unshielded moving machinery and avoid exposure to unprotected
heights. Finally, the claimant can have no interaction with the
public, only occasional interaction with coworkers and supervisors,
and interaction with supervisors should be limited to ensuring that
the claimant is on task to complete tasks to industry standards.
(Tr. 61.)
The ALJ found that Hemby’s allegations regarding his limitations were not entirely
credible. (Tr. 62.) The ALJ indicated that she was assigning substantial weight to some of the
opinions of treating surgeon David Lange, M.D., and was assigning little weight to other portions
of Dr. Lange’s opinion. (Tr. 66-67.)

The ALJ accorded “little weight” to the opinion of treating

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surgeon Williams Rodgers, M.D., because she found that it did not reflect Hemby’s current level
of functioning. (Tr. 67.)
The ALJ further found that Hemby is unable to perform any past relevant work. (Tr. 69.)
The ALJ noted that a vocational expert testified that Hemby could perform jobs existing in
significant numbers in the national economy, such as document preparer, dowel inspector, and
patcher. (Tr. 70.) The ALJ therefore concluded that Hemby has not been under a disability, as
defined in the Social Security Act, from December 15, 2011, through the date of the decision. Id.
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on June 14, 2012, the claimant
is not disabled as defined in sections 216(i) and 223(d) of the Social
Security Act.
Based on the application for supplemental security income
protectively filed on October 1, 2012, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 71.)
III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a
preponderance of the evidence, but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial
evidence test,” however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal
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quotation marks and citation omitted). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff’s vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff’s
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant’s impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner’s findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
Page 5 of 24 

marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003). A reviewing court should not disturb the ALJ's decision unless it falls outside the
available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011).
III.B. Determination of Disability
A disability is defined 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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any other kind of substantial gainful
work which exists … in significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that
Page 6 of 24 

would not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291
(1987). “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 her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation
marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional

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tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).

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The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. '' 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. ''
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
not meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20
C.F.R. '' 404.1520a(c)(3), 416.920a(c)(3).
IV. Discussion
Hemby first argues that the ALJ erred in evaluating the medical opinion evidence when
determining his RFC. Hemby next argues that the ALJ erred in determining he could perform the
jobs of document preparer, dowel inspector, and patcher.

Page 9 of 24 

Hemby has undergone four surgeries for hip and back impairments from his alleged onset
date to the date of the administrative hearing. A summary of the procedures is provided below.
In October 2011, Hemby presented to Husam Nawas, M.D., at the St. Louis Orthopedic
Institute, Inc., with complaints of right hip pain. (Tr. 466-68.) Dr. Nawas diagnosed Hemby
with right hip capsule-labral tear, right hip piriformis syndrome,2 and right hip abductor and core
weakness. Id. On March 6, 2012, Hemby underwent hip arthroscopy performed by Dr. Nawas.
(Tr. 478.) On July 3, 2012, Hemby reported no hip pain, and was instructed to follow-up only as
needed. (Tr. 505-06.)
On February 28, 2012, Dr. Nawas noted that an MRI of Hemby’s lumbosacral spine
revealed evidence of right-sided lumbar radiculopathy with neuroforaminal narrowing. (Tr. 449.)
Hemby saw Sandra Tate, M.D., at St. Louis Orthopedic Institute, Inc., on five occasions from
March 5, 2012, through May 3, 2012, for treatment of low back and right buttock pain. (Tr.
451-52, 454-55, 456-57, 460-61, 462-63.) On May 3, 2012, Dr. Tate referred Hemby to Dr.
David Lange for a surgical consultation. (Tr. 462-63.) On July 6, 2012, Dr. Lange performed a
posterior lumbar interbody and posterolateral fusion at L4-L5 and posterolateral fusion at L5-S1,
with placement of instrumentation at L4-5 and L5-S1. (Tr. 508-09.)
Hemby continued to complain of low back pain following surgery. (Tr. 585.) On
November 27, 2012, Dr. Lange indicated that Hemby could either wait longer and use the bone
growth stimulator, or acknowledge delayed healing and proceed with further surgery. (Tr. 587.)
Hemby opted to schedule surgery. (Tr. 588.) On November 30, 2012, Hemby underwent a

2

Piriformis syndrome starts with pain, tingling, or numbness in the buttocks. Pain can be severe
and extend down the length of the sciatic nerve. The pain is due to the piriformis muscle
compressing the sciatic nerve, such as while sitting on a car seat or running. The piriformis
muscle is a flat, band-like muscle located in the buttocks near the top of the hip joint. Piriformis
Syndrome, http://www.webmd.com/pain-management/guide/piriformis-syndrome (last visited
February 16, 2017).

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repair of the fusion, removal of loose S1 screws, and replacement of the instrumentation. (Tr.
589-92.)
On June 4, 2013, Hemby reported that he was no better and that he wanted the hardware
out. (Tr. 597.) Dr. Lange told Hemby there was nothing more he could do for him, and referred
him to a new surgeon. (Tr. 598, 635.) Hemby saw William Blake Rodgers, M.D., on June 18,
2013. (Tr. 635.) Dr. Rodgers diagnosed Hemby with postlaminectomy syndrome, and acquired
spondylolisthesis, and recommended anterior lumbar interbody fusion surgery. (Tr. 636.)
Hemby underwent surgery a final time on July 8, 2013. (Tr. 632-34.)
A.

Credibility Determination

The Court will first consider the ALJ’s credibility determination, as the ALJ’s evaluation
of Hemby’s credibility was essential to his RFC determination. See Wildman v. Astrue, 596 F.3d
959, 969 (8th Cir. 2010) (“[The plaintiff] fails to recognize that the ALJ’s determination regarding
her RFC was influenced by his determination that her allegations were not credible.”); Tellez v.
Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (“The ALJ must first evaluate the claimant's
credibility before determining a claimant's RFC.”); Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2002) (same).
In evaluating a claimant’s credibility, the ALJ should consider the claimant’s daily
activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional restrictions. Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The claimant’s relevant work history and the
absence of objective medical evidence to support the complaints may also be considered, and the
ALJ may discount subjective complaints if there are inconsistencies in the record as a whole.
Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir. 2006) (citing Wheeler v. Apfel, 224 F.3d 891, 895

Page 11 of 24 

(8th Cir. 2000)). The ALJ must make express credibility determinations and set forth the
inconsistencies which led to his or her conclusions. Id. (citing Hall v. Chater, 62 F.3d 220, 223
(8th Cir. 1995)). The Court will uphold an ALJ’s credibility findings, so long as they are
adequately explained and supported. Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005).
In this case, the ALJ found that Hemby’s statements “concerning the intensity, persistence,
and limiting effects of these symptoms [were] not entirely credible.” (Tr. 62.) An ALJ may
view “[a]cts which are inconsistent with a claimant's assertion of disability” to “reflect negatively
upon that claimant’s credibility.” Chaney v. Colvin, 812 F.3d 672, 677 (8th Cir. 2016) (quoting
Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001)).
In assessing his credibility, the ALJ found that Hemby’s daily activities were not consistent
with his allegations that he has been unable to work due to disabling back pain. (Tr. 65.) At the
administrative hearing, Hemby testified that he can lift up to twenty-five pounds, sit for thirty to
forty-five minutes before he has to get up and move around, load the dishwasher, wash and dry
clothes, sweep, cook, take out the trash, take care of his two small children, take his children to the
city park weekly, dress and bathe without difficulty, bathe his children, drive daily, shop for
groceries for up to an hour at a time, and has hunted a few times since his surgery. (Tr. 65, 85,
102-05, 110, 112-15.) In addition, the ALJ noted that the medical record documents reports of
frequent walking and operating a riding lawn mower during the relevant period, including a
September 2013 report of “doing his two mile walks in the mornings.” (Tr. 65, 663, 621, 638,
642.) Hemby’s ability to perform these significant tasks undermined his claims as to the severity
of his back pain. See Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (significant daily
activities may be inconsistent with claims of disabling pain).

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The ALJ next discussed Hemby’s medications. She noted that Hemby testified that his
psychotropic medications helped him, and that he experienced no side effects from any of his
medications. (Tr. 65, 66, 99.) The ALJ properly considered the effectiveness and lack of side
effects of Hemby’s medications. See Polaski, 739 F.2d at 1322.
The ALJ also noted that Hemby did not fully comply with his treating doctor’s advice
regarding smoking cessation and bone stimulator use. (Tr. 66.) In Dr. Lange’s November 2012
notes from Hemby’s second surgery, he stated that Hemby was “told on multiple occasions, it is
necessary for him to stop all nicotine exposure. Although, the patient on multiple occasions had
suggested that was the case, his family suggest, he continues to smoke.” (Tr. 589-90.) On
December 11, 2012, Dr. Lange stated that a printout from the bone growth stimulator company
revealed Hemby “was not utilizing his device as religiously as he had stated.” (Tr. 593.) The
ALJ properly considered these instances of noncompliance and found that they detracted from
Hemby’s credibility. See Guilliams, 393 F.3d at 802 (“A failure to follow a recommended course
of treatment also weighs against a claimant’s credibility”); 20 C.F.R. §§ 404.1530, 416.930
(unjustified failure to follow prescribed treatment is grounds for denying disability).
The ALJ also noted that Hemby reported in his function report that he required a cane for
ambulation, but there is no evidence that a cane was prescribed or used. (Tr. 64, 350.) The ALJ
found that this inconsistency detracted from the credibility of Hemby’s subjective complaints.
The ALJ performed a proper credibility analysis and found that Hemby’s complaints of
disabling pain were not entirely credible.

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B.

Medical Opinion Evidence3

In determining Hemby’s RFC, the ALJ next discussed the medical opinion evidence. The
opinion evidence in the record is summarized below.
On August 28, 2012, Dr. Lange stated that Hemby was “overdoing it with very long
walks.” (Tr. 537.) He advised Hemby to cut his walking into several shorter walks during the
day as opposed to a long, fatiguing one. Id.
On November 14, 2012, state agency physician Kevin Threlkeld, M.D., completed a
Physical Residual Functional Capacity Assessment. (Tr. 147-48.) Dr. Threlkeld expressed the
opinion that Hemby could occasionally lift and carry ten pounds, and frequently lift or carry less
than ten pounds; stand or walk for a total of two hours; sit for a total of six hours in an eight-hour
workday; push or pull an unlimited amount; can never climb ladders, ropes, or scaffolds; and can
occasionally climb ramps or stairs, balance, stoop, crouch, crawl. Id.
On January 10, 2013, Dr. Lange completed a Medical Source Statement, in which he
expressed the opinion that Hemby could frequently lift ten pounds, and occasionally lift five
pounds; stand or walk for a total of three hours; sit for a total of three hours; push or pull no more
than twenty pounds; occasionally balance, kneel, or crouch; and could never climb, stoop, or bend.
(Tr. 567-68.) In support of these opinions, Dr. Lange noted “spinal fusion-not healed as yet.”
(Tr. 569.) Dr. Lange further indicated that rest would be helpful to Hemby, and that it was
necessary for him to assume a reclining position for up to thirty minutes one to three times a day,
assume a supine position for up to thirty minutes one to three times a day, and prop up his legs to a
height of two to three feet one to three times a day while sitting. (Tr. 569.)

3

Hemby only challenges the ALJ’s findings regarding his physical impairments. As such, the
ALJ will not discuss the medical evidence regarding his mental impairments.  
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Hemby presented to Dr. Lange for follow-up on January 21, 2013, at which time Dr.
Lange stated that Hemby “remains disabled form a work point of view.” (Tr. 595.)
Dr. Rodgers completed a Medical Source Statement-Physical on September 18, 2013, in
which he expressed the opinion that Hemby could frequently lift five pounds, and occasionally lift
ten pounds; needs to rest frequently when standing or walking, and cannot stand, sit, or walk for
prolonged periods as it increases pain; can sit a total of one hour; is limited in his ability to push or
pull; can never bend; and can occasionally climb, balance, stoop, kneel, crouch, or bend. (Tr.
625-26.) Dr. Rodgers found that rest would be helpful to Hemby, and that it was necessary for
him to assume a reclining position for up to thirty minutes one to three times a day, assume a
supine position for up to thirty minutes one to three times a day, and prop up his legs to a height of
two to three feet one to three times a day while sitting. (Tr. 627.)
“It is the ALJ’s function to resolve conflicts among the various treating and examining
physicians.” Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v.
Barnhart, 421 F.3d 745, 749–50 (8th Cir. 2005) (internal marks omitted)). The opinion of a
treating physician will be given “controlling weight” only if it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012–13 (8th Cir. 2000).
The record, though, should be “evaluated as a whole.” Id. at 1013 (quoting Bentley v. Shalala, 52
F.3d 784, 785–86 (8th Cir. 1997)). The ALJ is not required to rely on one doctor’s opinion
entirely or choose between the opinions. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
Additionally, when a physician’s records provide no elaboration and are “conclusory checkbox”
forms, the opinion can be of little evidentiary value. See Anderson v. Astrue, 696 F.3d 790, 794
(8th Cir. 2012). Regardless of the decision the ALJ must still provide “good reasons” for the

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weight assigned the treating physician’s opinion. 20 C.F.R § 404.1527(d)(2).
The ALJ must weigh each opinion by considering the following factors: the examining and
treatment relationship between the claimant and the medical source, the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
whether the physician provides support for his findings, whether other evidence in the record is
consistent with the physician's findings, and the physician’s area of specialty. 20 C.F.R. §§
404.1527(c)(1)-(5), 416 .927(c)(1)-(5).
The ALJ first discussed Dr. Lange’s opinions. The ALJ indicated that she was
assigning “little weight” to Dr. Lange’s January 2013 statement that Hemby remained “disabled
from a work point of view.” (Tr. 66, 595.) The ALJ explained that the issue of disability is
reserved to the Commissioner, and Dr. Lange’s statement was not supported by the record. (Tr.
66.) She stated that the “objective evidence and the claimant’s reports regarding his daily
activities contradict a finding that the claimant cannot perform primarily seated work activity with
limited lifting requirements as outlined in the above residual functional capacity assessment.” Id.
The ALJ stated that she was giving “substantial weight” to Dr. Lange’s statement that
Hemby should cut his walking into several shorter walks per day as opposed to long fatiguing
ones. (Tr. 66, 537.) She stated that the evidence supports that Hemby has difficulty with
prolonged standing and walking due to his back pain and leg numbness and this is reasonable in
light of his history of multiple surgeries and the objective findings of tenderness and some
decreased range of spinal motion. (Tr. 67.)
The ALJ stated as follows with regard to Dr. Lange’s Medical Source Statement
findings:

Page 16 of 24 

As for Dr. Lange’s opinion that the claimant can lift 10 pounds occasionally, and
five pounds frequently; can never push or pull more than 20 pounds; can never
climb; and can only occasionally balance, kneel, and crouch, the undersigned has
given these statement[s] considerable weight here. Again this is consistent with
the evidence including the claimant’s treatment history and objective findings.
However, the undersigned gives little weight to Dr. Lange’s statements that the
claimant can never stoop, or bend and that he would need to recline, lie supine and
elevate his legs during the day. This portion of the opinion is contradicted by
persuasive evidence, including the claimant’s testimony regarding his daily
activities, the minimal objective findings including negative straight leg raise
testing and normal gait on exam.
(Tr. 67.)
Hemby argues that the ALJ erred in discrediting portions of Dr. Lange’s opinion, and in
inserting her own medical opinion.
The undersigned finds that the ALJ provided good reasons for crediting portions of Dr.
Lange’s opinion while discrediting other portions of the opinion. The ALJ found that Dr. Lange’s
opinions regarding Hemby’s inability to stoop or bend, and need to elevate his legs, recline, or lie
in a supine position were inconsistent with Hemby’s reported activities. As previously discussed,
Hemby was able to load the dishwasher, wash and dry clothes, sweep, take his family to the park,
take out the trash, dress and bathe, clean the house, take care of his small children, bathe his
children, drive, shop in stores for up to an hour at a time, hunt, operate a riding tractor, and walk
two miles daily.
An ALJ can give less weight to a medical opinion when it is inconsistent with the evidence
in the record. See Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007). The inconsistencies
between Hemby’s reported activities and Dr. Lange’s opinion was a sufficient basis for
discrediting some of Dr. Lange’s findings. See Toland v. Colvin, 761 F.3d 931, 936 (8th Cir.
2014) (stating “if a doctor evaluates a patient as having more physical limitations than the patient
actually exhibits in her daily living, an ALJ need not ignore the inconsistence”) (citations omitted).

Page 17 of 24 

The ALJ also noted that minimal objective findings were noted on examination, including
negative straight leg raise testing and normal gait. (Tr. 67, 460, 462, 537, 594, 595, 596.) On
December 10, 2012, just ten days after his second back surgery, Hemby reported that he felt better
than he did before the surgery. (Tr. 594.) Upon examination, Hemby had a normal gait. (Tr.
594.) On January 21, 2013, eleven days after Dr. Lange authored his opinion, Dr. Lange
indicated that “on exam everything looks fine.” (Tr. 595.) In March 2013, Hemby reported that
he felt “great” on some days, and on other days, he experienced low back pain. (Tr. 596.) Upon
examination, Hemby was “cheerful,” got up and down and ambulated normally, and had no limp
on the side of his labral repair. (Tr. 596.) In addition, the state agency physician, Dr. Threlkeld,
reviewed the medical evidence of record and found that the examinations were “unremarkable.”
(Tr. 148.) The ALJ’s finding that the medical evidence documented minimal objective findings is
supported by the record. Thus, the ALJ provided sufficient reasons for discrediting some of Dr.
Lange’s opinions.

As to Dr. Rodgers’ opinion, the ALJ stated that the opinion was given “prior to the

claimant’s most recent back surgery and is not a reflection of his current level of functioning, but
rather an opinion given during a period of exacerbation of the claimant’s pain.” (Tr. 67.) The
ALJ further stated that:
The longitudinal medical record fails to support that the claimant has this degree of
limitation. Dr. Rodgers most recent treatment note in fact indicates that the
claimant reported only mild lower back pain and that the claimant was ‘much better
than preop’, which suggests that his opinion regarding the claimant’s functioning
had changed since the claimant underwent surgery. Therefore, this opinion is
given little weight here.
Id.
Hemby contends that the ALJ’s decision to discredit Dr. Rodgers’ opinion was based on
the ALJ’s mistaken belief that the September 18, 2013 opinion was rendered prior to Hemby’s last
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surgery, which occurred on July 8, 2013. Defendant suggests that the ALJ’s confusion may have
been caused by Hemby’s testimony at the hearing that his last surgery was in November 2013.
(Tr. 92.) Defendant further argues that Dr. Rodgers’ opinion was inconsistent with the record,
which revealed Hemby improved following his last surgery.
Although the ALJ’s statement that Dr. Rodgers’ opinion was rendered prior to Hemby’s
last surgery is factually incorrect, this error is not reversible as the ALJ provided other reasons to
discredit Dr. Rodgers’ opinion. The ALJ found that the record, including Dr. Rodgers’ own
treatment notes, did not support the degree of limitation found by Dr. Rodgers. For example, at
Hemby’s first post-operative visit on July 23, 2013, he reported to a physician assistant at Dr.
Rodgers’ office that he felt “100% better than before surgery,” and he was walking one mile a day.
(Tr. 638.) On August 20, 2013, Rodgers reported that he was “much better” since his surgery,
was walking daily, and he had operated a riding lawn mower over the weekend. (Tr. 642.) Upon
examination, Dr. Rodgers noted only that Rodgers’ wounds were “well healed.” Id. On
September 25, 2013, Hemby reported to Dr. Rodgers’ office that he had been riding on his tractor,
and walking for two miles in the mornings. (Tr. 663.) On October 15, 2013, Hemby reported
right lower extremity weakness, but indicated his low back was doing well, and he had “no
complaints.” (Tr. 665.) Upon examination, Dr. Rodgers’ noted “minimal” lower back pain, and
tenderness at the trochanteric bursa. Id. Hemby saw pain management physician Sean P.
Stoneking, M.D., on November 15, 2013, with complaints of low back pain radiating into his right
leg that he rated as a four on a scale of one to ten. (Tr. 652.) Upon examination, Hemby’s gait
was normal, he had moderately reduced range of motion and tenderness of the lumbar spine,
negative straight leg raising, full strength of the lower extremities, and normal sensation of the
lower extremities. (Tr. 655-56.) At Hemby’s last visit with Dr. Rodgers in January 2014, he

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reported “mild low back pain,” and right lower extremity weakness. (Tr. 669.) Upon
examination, Dr. Rodgers found that Hemby was neurologically stable, and his examination was
unchanged. Id. Hemby’s hardware was in good alignment. Id. This evidence supports the
ALJ’s findings that the medical evidence of record was inconsistent with the degree of limitation
found by Dr. Rodgers, and that Hemby complained of only mild back pain following surgery.
The ALJ next found that the opinion of the state agency physician, Dr. Threlkeld, was
consistent with the evidence, including the observations of Hemby’s treating doctors and Hemby’s
own reports regarding his activity levels. (Tr. 68.) She noted that this opinion is supported with
an explanation and a discussion of the relevant evidence. The ALJ indicated that she was
assigning “heavy weight” to Dr. Threlkeld’s opinion, although she found Hemby is more limited
in terms of his ability to climb ramps and stairs, and she added the option to change position based
on Hemby’s credible testimony at the hearing. Id.
Hemby contends that the ALJ erred in relying on the opinion of a non-examining state
agency physician. Hemby notes that Dr. Threlkeld provided his opinion in November 2012, prior
to two of his four surgeries.
The Court finds that the ALJ properly considered the opinion of Dr. Threlkeld. As a state
agency physician, Dr. Threlkeld is a highly qualified expert in Social Security disability
evaluation. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). Although Hemby asserts that Dr.
Threlkeld’s opinion is entitled to less weight because it was provided prior to two of Hemby’s
surgeries, “Plaintiff does not provide, and the Court is not aware of, any legal authority which
holds a consultant’s medical opinion must be based on subsequently created medical records, or
that the consultant’s opinion must necessarily be discounted because it is not based on those
records.” Barker v. Colvin, No. 14–0900–CV–W–ODS–SSA, 2015 WL 4928556, at *1 (W.D.

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Mo. Aug. 18, 2015). “Indeed, such a timeline is not uncommon in the context of review as
claimants will update their medical records and other evidence of record throughout the course of
the pendency of their claim and the medical or psychological consultant will necessarily review
the file as it is at a certain point in time.” Ward v. Berryhill, No. 1:15—CV—00225—NCC, 2017
WL 476403, at * 5 (E.D. Mo. Feb. 6, 2017).
Dr. Threlkeld provided a narrative explanation of his opinion, in which he discussed
Hemby’s first two surgeries and noted that Hemby’s physical examinations had been
unremarkable. (Tr. 148.) As previously discussed, Hemby’s back pain improved even further
after his last surgery. In addition, the ALJ did not rely solely on Dr. Threlkeld’s opinion when
determining Hemby’s RFC. Thus, the ALJ did not err in evaluating this opinion.
C.

RFC

Residual functional capacity is defined as that which a person remains able to do despite
his limitations. 20 C.F.R. § 404.1545(a), Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). The
ALJ must assess a claimant’s RFC based upon all relevant, credible evidence in the record,
including medical records, the observations of treating physicians and others, and the claimant’s
own description of her symptoms and limitations. 20 C.F.R. § 404.1545(a); Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). A
claimant’s RFC is a medical question, and there must be some medical evidence, along with other
relevant, credible evidence in the record, to support the ALJ’s RFC determination. Id.; Hutsell v.
Massanari, 259 F.3d 707, 711–12 (8th Cir. 2001); Lauer, 245 F.3d at 703-04; McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000). An ALJ’s RFC assessment which is not properly informed and
supported by some medical evidence in the record cannot stand. Hutsell, 259 F.3d at 712.
However, although an ALJ must determine the claimant’s RFC based upon all relevant evidence,
the ALJ is not required to produce evidence and affirmatively prove that a claimant is able to
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perform certain functions. Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at
863. The claimant bears the burden of establishing her RFC. Goff, 421 F.3d at 790.
Moreover, “the 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.
In this case, the ALJ considered the objective medical evidence, which revealed Hemby
has had back and hip problems with multiple surgical interventions since his alleged onset date.
The ALJ therefore adopted many of Hemby’s treating surgeons’ findings in limiting him to lifting
no more than ten pounds occasionally, and limiting him to standing or walking for no more than
five minutes before resuming a seated position; and never climbing, kneeling, crouching or
crawling. The ALJ rejected the opinions that were not supported by the record, such as the
inability to bend at the waist, and a need to elevate his leg throughout the day. The ALJ provided
sufficient reasons for rejecting these limitations, including the lack of objective findings on
examination, an improvement after Hemby’s last surgery, and Hemby’s own statements regarding
his significant daily activities. The RFC formulated by the ALJ is also consistent with the opinion
of Dr. Threlkeld, and is slightly more restrictive than Dr. Threlkeld’s findings. Thus, the ALJ’s
RFC determination is supported by substantial evidence in the record as a whole.
D.

Step Five Determination

Hemby next argues that the ALJ erred in determining Hemby could perform jobs of
document preparer, dowel inspector, and patcher. He contends that the vocational expert’s
testimony as to the requirements of those jobs was inconsistent with the ALJ’s RFC determination.
At issue is the following testimony of the vocational expert, Denise Weaver:
I don’t think any of those jobs cited require an extreme amount of contact with
coworkers. There—there will be as an individual begins to work and as a
probationary employee there will be a little bit more frequent contact with the
supervisor to assure that the individual understands the job that they’re doing but
Page 22 of 24 

eventually in the not—not real distant future because these jobs are unskilled jobs
that I am quoting and they would not take much more than a 30-day period to learn.
That supervisor will be backing away and allowing that individual to operate and
do their-to their job with very little supervision so I would say eventually they
would certainly all three meet—meet your hypothetical but to begin with there is
going to be more supervisory in any job.
(Tr. 131.)
Hemby contends that, because Ms. Weaver testified that the jobs she cited would require
more contact with supervisors during an initial training period, the positions are inconsistent with
the RFC found by the ALJ. Hemby notes that the ALJ found that he could have only occasional
interaction with coworkers and supervisors, and his interaction with supervisors should be limited
to ensuring that he is on task to complete tasks to industry standards. (Tr. 61.)
Hemby’s argument lacks merit. Despite the testimony cited above regarding an initial
training period requiring more interactions with supervisors, Ms. Weaver ultimately found that the
hypothetical claimant could perform the positions of document preparer, dowel inspector, and
patcher. (Tr. 131.) The Court notes that, under Hemby’s theory, every time a claimant is limited
in his interactions with supervisors, the ALJ would be required to determine that the claimant is
entitled to benefits because the training for a job necessarily involves more frequent contact with
supervisors. A similar argument was rejected as “untenable” in Wright v. Comm’r of Soc. Sec.,
No. 1:12CV1103, 2013 WL 3873947, at * 15 (N.D. Ohio Jul. 25, 2013).
The ALJ properly relied on the testimony of the vocational expert to find that Hemby could
perform other work existing in significant numbers in the national economy with his RFC. See
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a vocational expert’s testimony
is substantial evidence when it is based on an accurately phrased hypothetical capturing the
concrete consequences of a claimant’s limitations). Thus, the ALJ’s decision finding Hemby not
disabled is supported by substantial evidence.
Page 23 of 24 

Conclusion
For all of the foregoing reasons, Hemby’s allegations that the ALJ erred are unavailing.
Hemby was afforded a full and fair opportunity to present his claims, and the ALJ’s ultimate
decision did not fall outside the available “zone of choice.” Buckner, 646 F.3d at 556. It must
therefore be affirmed. Accordingly, Judgment will be entered separately in favor of Defendant in
accordance with this Memorandum.

ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 10th day of March, 2017.

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