Barton v. Colvin

Filing 21

MEMORANDUM : For the foregoing reasons, the final decision of the Acting Commissioner of Social Security is affirmed. An appropriate Judgement Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 03/06/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRETT BARTON,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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No. 4:15 CV 1723 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Brett
Barton for disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. § 401, et seq., and supplemental security income under Title XVI of that act, 42
U.S.C. § 1381, et seq. The parties have consented to the exercise of plenary authority by
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the
reasons set forth below, the final decision of the defendant Commissioner is affirmed.

I. BACKGROUND
Plaintiff was born on June 17, 1972. (ECF No. 13 at 38) (Tr. 38). He filed his
Title II and Title XVI applications on November 30, 2012, alleging an onset date of
August 16, 2011, and alleging he was unable to work due to back problems, shaking from
the waist up, and depression. (Tr. 59). Plaintiff’s applications were denied on January
17, 2013 and thereafter he requested a hearing before an Administrative Law Judge
(ALJ). Following the hearing on June 18, 2014, the ALJ denied plaintiff’s applications.
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. 42 U.S.C. § 405(g).

(Tr. 14-16). The Appeals Council denied plaintiff’s request for review. Thus, the
decision of the ALJ stands as the final decision of the Commissioner.

II. MEDICAL AND OTHER HISTORY
Plaintiff has a substantial employment history: as a Nurse Aide from 1991 to
1997, as a serviceman for a gas utility from 1998 to 1999, as a tire service mechanic from
2000 to 2003, as a janitorial supervisor from 2004 to 2006, and as an auto sales mechanic
from 2007 to August 16, 2011. (Tr. 167).
In August 2010 plaintiff took part in a sleep study at the Phelps County Regional
Medical Center (Phelps County Regional) to address his sleep apnea problem. (Tr. 24446). The doctor recommended plaintiff stop smoking, lose weight, and wear his CPAP
machine. (Tr. 244). After complaining of headaches later that month, plaintiff received a
CT scan which was negative. (Tr. 243).
In mid-September 2010, plaintiff first began sporadic treatment for lower back
pain. He received multi-level facet joint injections by Glenn Kunkel, M.D., at Phelps
County Regional based on lumbosacral spondylosis without myelopathy. (Tr. 239).
In October 2010, after complaining of neck pain plaintiff underwent MRIs of the
cervical, thoracic, and lumbar spine. (Tr. 231-34). The cervical MRI revealed disc
extrusion at the C5/C6 level. The thoracic MRI revealed mild degenerative disc disease
as well as mild foraminal narrowing at the T9/10 and T10/11 levels, but no evidence of
any central canal stenosis. (Tr. 233-34). The lumbar MRI showed mild foraminal
narrowing and no significant recurrent disc herniation. (Tr. 231).
In January 2011, plaintiff received a series of facet injections due to radiating
lower back pain. (Tr. 225-27). He also participated in a lumbar puncture study in March;
however, no lab analysis was included in the record. (Tr. 222).
On May 12, 2011, he had his tonsils removed. (Id.).
On June 17, 2011, due to chest pain and shortness of breath plaintiff had a chest
X-ray, which revealed no acute cardiopulmonary process. (Tr. 213). An associated EKG
similarly showed no acute changes. (Tr. 211).
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On August 16, 2011, his alleged disability onset date, following an injury at his
place of employment, plaintiff had an MRI of the lumbar spine at the Rolla Radiology
Group. The MRI report showed some foraminal stenosis and a small posterior annular
tear at the L4/L5 level, but no evidence of recurrent or residual disc herniation and no
significant central spinal stenosis. (Tr. 369-71).
From September through mid-November, 2011, plaintiff then underwent physical
therapy at Sport Rehab, Inc. in Rolla, but quit because he felt he was not making any
significant improvement. (Tr. 276-87, 45).
In August of 2013, after complaining of more headaches and left-sided weakness,
an MRI on plaintiff’s brain was performed which was found to be “essentially
unremarkable.” (Tr. 288).
In early October 2013, plaintiff underwent a cardiovascular consultation with Dr.
Timothy Martin, M.D., at Phelps County Regional Medical Center. (Tr. 323-27). Dr.
Martin’s physical examination showed, among other things, full range of motion in the
neck, regular heart rate, no clubbing, cyanosis or edema in the extremities, and 5/5 motor
strength. (Tr. 326). However, due to the uncertain etiology of his chest complaints a
myocardial stress test was ordered. (Tr. 327).
In mid-October 2013, the stress test was administered and revealed normal
findings throughout. (Tr. 301-06). An associated rest lexiscan study at the time revealed
similarly normal findings. (Tr. 299-300). An EKG at the same time revealed mild left
atrial enlargement and mild pulmonary hypertension. (Tr. 301-02).
In November and December of 2013, and in March of 2014, the plaintiff had
follow-up visits with Dr. Martin which showed him making substantial improvements
over the course of those months. (Tr. 308-22).
On November 25 and December 23, 2013, February 3 and 17, and March 17,
2014, plaintiff was seen by Rachelle L. Gorrell, DO, at the Forest City Family Practice.
(Tr. 334-66).

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On March 18, 2014, Dr. Martin examined plaintiff for chest pain, hypertension,
hyperlipidemia, tobacco use, and obesity.

Descriptive of how plaintiff had improved,

Dr. Martin reported:
1. Chest pain. The patient has been having episodes of chest pain which he
describes as sharp, left submammary, occurring spontaneously and
resolving spontaneously. It is not associated with exercise. At his last visit
it was thought to be musculoskeletal and not further treatment was done.
Since the last visit he has continued to improve. He has only had
occasional episodes of chest pain but no other signs or symptoms of angina.
* * *
REVIEW OF SYSTEMS:
General: The patient denies any weakness or fatigue, change in weight, or
diaphoresis. Neck: Denies any neck pain or stiffness with vertical or
horizontal motion. Chest: Denies any chest pain with deep breathing or
coughing. Heart: Denies any unexplained heaviness, tightness or
squeezing, PND or orthopnea. Lungs: Denies any hemoptysis, wheezing,
productive or non-productive cough. GI: Denies any abdominal pain,
melena, nausea, vomiting, diarrhea or constipation. GU: Denies any
frequency, urgency, dysuria or hematuria. Musculoskeletal: Denies any
muscle aches, joint pain or tenderness. Neurologic: Denies any seizure
activity, paresthesias or paralysis.
PHYSICAL EXAMINATION:
General: This is a well-developed, well-nourished patient in no apparent
distress who is alert and cooperative.
(Tr. 310-11).
In February and March 2014, plaintiff briefly pursued treatment for psychological
symptoms at Phelps County Regional Medical Center with David Seaton, Psy.D., but the
associated records do not indicate he was ever diagnosed with any specific impairment
during this period. (Tr. 372-77). The records from this time also indicate plaintiff would
not think past his date for his disability hearing, and he declined even to consider
alternatives should he not receive disability benefits. (Tr. 376).
On April 21 and May 9, 2014, Dr. Gorrell examined plaintiff. On May 9, 2014,
Dr. Gorrell completed a check-box form Medical Source Statement—Physical. On that
form, Dr. Gorrell reported that plaintiff could carry 5 pounds frequently and 10 pounds
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occasionally for up to one-third of a typical 8 hour workday. He could stand or walk
continuously for 15 minutes and for 2 hours throughout a workday.

He could sit

continuously for 1 hour and 4 hours with usual breaks. Due to his degenerative spinal
condition, plaintiff’s ability to push and pull was limited. Plaintiff could never climb,
stoop, kneel, crouch, or crawl. He could occasionally balance, reach, and handle objects.
He could occasionally finger and feel objects.

He had no restrictions for seeing,

speaking, or hearing. Dr. Gorrell reported that plaintiff should avoid all vibrations,
hazards, and heights. He should avoid moderate exposure to extreme cold, extreme heat,
weather, and wet conditions. And he should avoid concentrated exposure to dust and
fumes. She reported that plaintiff suffers pain and needs to lie down every 30 to 40
minutes for 10 to 15 minutes. (Tr. 366-68).

III. ALJ HEARING
Plaintiff’s hearing before the ALJ was held on June 18, 2014.

(Tr. 34-57).

Plaintiff participated in the hearing by teleconference with counsel and testified to the
following facts. He was 42 years old and had completed the ninth grade. (Tr. 38-39).
He has not worked since August 2011 when he was injured on the job. (Tr. 41). He was
separated from his wife and did not have any children. (Tr. 39). He received vocational
training at the auto dealerships that employed him. (Id.) He either lived alone or was
homeless, and had to depend on others to get around and do the things he needed to do.
(Tr. 39, 52).
Plaintiff has a hard time doing most daily activities. (Tr. 41). He experiences pain
in his lower back, down his left leg, in his upper back and neck down to his left arm and
fingertips. (Tr. 41). He is able to stand for approximately fifteen minutes at a time
before he has to sit down for a half-hour to an hour, depending on the severity of the pain.
(Tr. 42). He is able to sit for fifteen or twenty minutes at a time before he has to readjust
to take pressure off his back. (Tr. 43). He takes Percocet, Oxycodone, and Baclofen for
his back pain.

(Id.)

These medications cause sleepiness, dizzy-headedness, and

sometimes aggression. (Tr. 44). He has received injections but they have offered limited
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relief. (Tr. 45). He also participated in eight weeks of physical therapy, which only
aggravated his condition. (Id.) He can comfortably lift ten pounds. (Tr. 46).
He has as many as four migraines a month, for which he takes Relpax and two
other medications he could not recall. (Tr. 47). His migraines last between two and five
days. (Id.) On a typical day he lazes around, unable to do household chores. (Tr. 49).
He often drops things he is holding in his left hand due to loss of sensation. (Tr. 50). He
uses a cane, because he has fallen several times after his left leg gave out on him. (Tr.
44). He claimed to have depression, though he was not being treated for it. (Tr. 50-51).
Vocational Expert (VE) Janice Astard also testified.

The VE considered

hypothetical individuals with the same age, educational background, and work history as
plaintiff. (Tr. 54). The first hypothetical individual could occasionally and frequently lift
ten pounds, stand two hours a day for thirty minutes at a time, sit six hours a day for
thirty minutes at a time, and occasionally stoop, crouch, kneel, or crawl. (Tr. 54-55).
The VE concluded that such an individual could not return to his past work but that there
was a wide range of unskilled, sedentary occupations that he could do, credit checker,
document preparer, and circuit board assembler. (Tr. 55-56).
The second hypothetical person could occasionally lift ten pounds, frequently five
pounds, stand two hours a day for fifteen minutes at a time, sit for three hours a day, and
occasionally balance but never stoop, crouch, kneel, or crawl.

(Tr. 56).

The VE

concluded that such an individual could not return to plaintiff’s past relevant work and
that there were no jobs in significant numbers in the national economy this person could
perform. (Id.)

IV. ALJ DECISION
On July 16, 2014, the ALJ issued a decision unfavorable to plaintiff. (Tr. 17-29).
The ALJ found that plaintiff met all the Title II insured status requirements through
December 31, 2016, and had not engaged in any substantial gainful activity since August
16, 2011, his alleged onset date. (Tr. 19). Further, plaintiff had the following severe
impairments: degenerative disc disease of the cervical and lumbar areas; obesity; and
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headaches. (Id.) However, the ALJ found that these impairments, taken alone or in
combination, did not meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 20).
The ALJ determined plaintiff retained the residual functional capacity (RFC) to
perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). (Tr. 20).
Plaintiff could lift up to ten pounds frequently or occasionally, stand or walk for two
hours in an eight-hour period for at least thirty minutes at a time, and sit for six hours in
an eight-hour workday for at least thirty minutes at a time with normal breaks. (Id.) In
addition, the ALJ found that plaintiff could only occasionally climb ramps and stairs, but
never ladders, ropes, or scaffolds, and only occasionally stoop, kneel, crouch, and crawl.
(Id.) He is limited to occasional pushing and pulling, to occasional overhead reaching
and handling with his left arm, and to perform jobs that do not demand attention to detail
or complicated tasks or instructions. (Id.)
As a result of the RFC finding, the ALJ concluded plaintiff was unable to perform
his past relevant work. (Tr. 27). However, given his RFC, age, education, and work
experience, the ALJ found there were jobs existing in significant numbers in the national
economy that plaintiff could perform: credit checker, document preparer, and circuit
board assembler. (Id.) Accordingly, the ALJ found plaintiff was not disabled. (Tr. 2829).

V. GENERAL LEGAL PRINCIPLES
The role of the court in reviewing the Commissioner’s final decision is to
determine whether the Commissioner’s findings comply with the relevant legal principles
and are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue,
564 F.3d 935, 942 (8th Cir. 2009). Substantial evidence is evidence that is sufficient to
cause a reasonable person to agree with the Commissioner’s decision. Id. In determining
whether the evidence is substantial, the court considers evidence that both supports and
detracts from the Commissioner’s decision. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir.
2007). As long as substantial evidence supports the decision, the court may not reverse it
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merely because substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently. See Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). A court should “disturb the ALJ’s
decision only if it falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d
1126, 1131 (8th Cir. 2015) (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.
2006).
To be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.

42 U.S.C. §§ 423 (a)(1)(D), (d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step administrative process is used
to determine whether an individual is disabled.

20 C.F.R. §§ 404.1520(a)(4) and

416.920(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987) (describing the
five-step process).
Steps One through Three require the claimant to show: 1) he is not currently
engaged in any substantial gainful activity; 2) he suffers from a severe impairment; and
3) that impairment meets or equals an impairment listed in Section 404, Subpart P. 20
C.F.R. § 416.920(a)(4)(i)-(iii). At Step Four the Commissioner considers whether the
claimant retains the residual functional capacity to perform his previous work. Id. at §
416.920(a)(4)(iv). In determining the RFC, the ALJ must consider all the claimant’s
impairments, including impairments that are not severe. SSR 96-8p. The claimant bears
the burden of demonstrating he is no longer able to return to his previous work. PateFires, 564 F.3d at 942. If this burden is met, as it was in this case, the Commissioner
must establish at Step Five that the claimant retains the RFC to perform other work that
exists in significant numbers in the national economy. 20 C.F.R. § 404.1520 (a)(4)(v).

VI. DISCUSSION
Plaintiff contends the ALJ erred in two respects. First, plaintiff argues the ALJ did
not accord substantial value to the medical opinions of Dr. Rachelle Gorrell, one of his
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treating physicians, rather than minimal, weight.

Second, plaintiff argues the ALJ

incorrectly determined his residual functional capacity. The court disagrees with both
assertions.

A. The ALJ afforded correct weight to Dr. Gorrell’s Medical Source Statement
Plaintiff argues the ALJ failed to consider the RFC as required by SSR-96-8p,
because he failed to give reasons for giving Dr. Gorrell’s opinion minimal weight.
Specifically, plaintiff argues, following Papesh, that the reasons the ALJ cited for
affording Dr. Gorrell’s opinion minimal, rather than substantial, weight are legally
insufficient. (ECF No. 14 at 9-13).
The opinion of a treating physician 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 [the] record.”

20 C.F.R. §

404.1527(c)(2). If the treating physician’s opinion is not given controlling weight, the
ALJ must give “good reasons” for failing to do so. Id. When deciding the weight to give
a medical opinion the ALJ considers: the examining relationship; the length of treatment
and frequency of examination; the nature and extent of treatment relationship; whether it
is supported by relevant medical evidence; the consistency of the opinion with the record
as a whole; and any other factor that tends to support or contradict the opinion. 20 C.F.R.
§ 404.1527(c)(2)-(c)(6). The ALJ may reject the opinions of any medical provider if they
are not supported by the record as a whole. Wagner v. Astrue, 499 F.3d 842, 848 (8th
Cir. 2007). Additionally, when a physician’s opinion provides little or no elaboration and
is expressed in a conclusory checkbox form, the opinion can be of little evidentiary value.
Anderson v. Astrue, 696 F.3d. 790, 794 (8th Cir. 2012).
In this case, the ALJ attributed limited weight to Dr. Gorrell’s May 9, 2014
opinions, because they were inconsistent with her own treatment records and examination
findings, and because they appeared to be based on plaintiff’s subjective complaints.
(ECF No. 13 at 25). Plaintiff argues that under Papesh, while this may have been enough
to afford the opinion non-controlling weight, it was not enough to afford the opinions
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minimal weight. (ECF No. 14 at 9-10). Plaintiff misapplies Papesh. The Court of
Appeals in Papesh held the treating physician’s opinion was entitled to substantial
weight, because it was consistent with the overall record, it comported with Papesh’s own
credible description of her limitations, and it contradicted only one other doctor’s
opinion. Papesh, 786 F.3d at 1131-32. None of those facts hold in this case.
Here, the ALJ found Dr. Gorrell’s Medical Source Statement was against both Dr.
Gorrell’s own treatment records and the evidence on the whole. As the ALJ explained,
Dr. Gorrell’s notes “consistently indicate that the claimant had essentially normal range
of motion throughout, with a normal gait and no muscle spasms,” and that “numerous
physical examinations have consistently failed to support that these impairments are as
functionally limiting as the claimant alleges.” (ECF No. 13 at 25-26). Moreover, the
MSS provided by Dr. Gorrell was a checkbox form with very little supportive
information provided in it. (Tr. 367-68). A medical opinion may be of limited weight, if
it provides only conclusory statements or is inconsistent with the record. Papesh, 786
F.3d at 1132. An ALJ may “discount or even disregard the opinion . . . where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.”
Id.
As stated, the ALJ also concluded that Dr. Gorrell’s MSS appeared to be based on
plaintiff’s subjective complaints. The ALJ concluded that these complaints were only
partially credible, which is a legally sufficient reason for the ALJ to disregard Dr.
Gorrell’s medical source statement. See Gaddis v. Chater, 76 F.3d 893, 895-96 (8th Cir.
1996) (noting that an ALJ may discount physician’s opinion if it is based on discredited
subjective complaints). The ALJ did not err in affording Dr. Gorrell’s opinion limited
weight.

B. The ALJ appropriately determined plaintiff’s RFC finding
A claimant’s RFC is what he can do despite his limitations. 20 C.F.R. § 404.1545.
Plaintiff claims there is no medical evidence to support the ALJ’s RFC determination.
Plaintiff asserts the ALJ improperly discounted his statements and arbitrarily concluded
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he had the ability to perform a limited range of sedentary work. (ECF No. 14 at 13). The
court disagrees.
It is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others, and
the claimant’s own descriptions of his limitations. Pearsall, 274 F.3d at 1217. In
determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility. In
evaluating a claimant’s subjective complaints, the ALJ must consider all evidence
relating to: the claimant’s daily activities; duration, frequency and intensity of pain;
dosage, effectiveness, and side effects of medication; precipitating and aggravating
factors; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1994). Subjective complaints may be discounted, if they are inconsistent with the record
as a whole. Andrews v. Colvin, 791 F.3d 923, 929 (8th Cir. 2015). The Commissioner
uses medical sources to provide evidence about several factors, including RFC, but the
ultimate decision on these matters belongs to the Commissioner.

C.F.R. §

404.1527(d)(2).
Substantial evidence supports the ALJ’s finding of the plaintiff’s RFC. Plaintiff
claimed to suffer from depression at various points in the hearing. (ECF No. 13 at 44,
50-51). However, there is no evidence he was ever diagnosed or treated for it. Similarly,
although plaintiff periodically complained of migraines, the record fails to support his
headaches occurred at the frequency, duration, or severity he alleged. In fact, in a followup visit in March 2014, three months before the ALJ hearing, plaintiff reported no
complaints of headaches at all. (ECF No. 13 at 310). Further, there is also no evidence
plaintiff had been prescribed, or actually required the assistance of, the cane he testified
he uses for walking.
During a mental health visit with Dr. Seaton in March 2014, plaintiff spoke at
length about receiving disability and about his worrying over the outcome of the
administrative hearing, “yet declined to consider alternatives should that not be
successful.” (Tr. 376). The ALJ thus concluded the plaintiff’s testimony as to the nature
and severity of his symptoms was only partially credible and afforded it little weight.
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These were sufficient reasons for doing so. Andrews v. Colvin, 791 F.3d at 929; see also,
Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996) (holding an ALJ may consider the
element of strong secondary gain in judging a plaintiff’s credibility).
After evaluating the credibility of plaintiff’s subjective complaints, the ALJ
concluded plaintiff could lift or carry up to ten pounds occasionally or frequently. This
was consistent with plaintiff’s own testimony at the hearing that he was comfortably able
to do so. (Tr. 46). The ALJ found the plaintiff could stand or walk for two hours for
thirty minutes at a time during an eight hour day. This was consistent with Dr. Gorrell’s
opinion on the Medical Source Statement. (Tr. 367). The ALJ found plaintiff could sit
for thirty minutes at a time during an eight hour period. This was consistent with
plaintiff’s testimony that he could sit between a half-hour to an hour depending on the
pain. (Tr. 42-43). The ALJ found the plaintiff could occasionally climb ramps and stairs
but never ladders, ropes, or scaffolds. This was reasonable given plaintiff’s chronic back
problems. The ALJ found that plaintiff could occasionally stoop, kneel, crouch, and
crawl, and that plaintiff could perform only occasional pushing and pulling and
occasional overhead reaching and handling with the left arm.

These findings are

consistent with the plaintiff’s testimony that he cannot do much around the house and has
difficulty with numbness in his left hand. (Tr. 48-50).
Last, due to reports of headaches and side effects of medications, the ALJ found
plaintiff could perform only jobs that do not demand attention to details or complicated
tasks. This again is supported by both the record and plaintiff’s testimony. (Tr. 44).

VII. CONCLUSION
For the foregoing reasons, the final decision of the Acting Commissioner of Social
Security is affirmed. An appropriate Judgement Order is issued herewith.

_______/S/ David D. Noce_______________
UNITES STATES MAGISTRATE JUDGE
Signed on March 6, 2017.
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