Gerard v. Colvin

Filing 24

MEMORANDUM AND ORDER: For all of the foregoing reasons, Gerard's allegations that the ALJ erred are unavailing. Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/31/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL W. GERARD,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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MEMORANDUM AND ORDER
Plaintiff Michael W. Gerard 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
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act.
An Administrative Law Judge (“ALJ”) found that, despite Gerard’s 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 following reasons, 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.
Page 1 of 22 

I. Procedural History
Gerard protectively filed his application for SSI on October 15, 2012. (Tr. 236.) He
alleged that he became disabled on October 16, 2002,2 due to problems with his right knee, right
elbow, shoulder, back, and feet; chronic gout; enlarged prostate; and high blood pressure. (Tr.
236, 257.) Gerard’s claims were denied initially. (Tr. 142.) Following an administrative
hearing, Gerard’s claims were denied in a written opinion by an ALJ, dated September 26, 2014.
(Tr. 14-22.) Gerard 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 December 2, 2015.
(Tr. 6, 1-4.) 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, Gerard first claims that the ALJ “failed to properly evaluate opinion
evidence.” (Doc. 18 at 3.) Gerard next argues that the ALJ “failed to obtain evidence from a
vocational expert.” Id. at 11.
II. The ALJ=s Determination
The ALJ first stated that Gerard had not engaged in substantial gainful activity since his
alleged onset date of October 15, 2012. (Tr. 16.)
The ALJ concluded that Gerard had the following severe impairments: degenerative disc
disease of the cervical spine; degenerative disc disease of the lumbar spine; gout; arthritic changes

2

Although Gerard alleged a disability onset date of October 16, 2002, the ALJ considered whether
Gerard was disabled beginning on his application date of October 15, 2012 (Tr. 16), because SSI is
not payable prior to the application date. See 20 C.F.R. ' 416.335 (“When you file an application
in the month that you meet all the other requirements for eligibility, the earliest month for which
we can pay you benefits is the month following the month you filed the application.”)
Page 2 of 22 

to both feet; and right elbow heterotopic ossification.3 Id. The ALJ found that Gerard 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. 17.)
As to Gerard’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform the full range of light work as defined in 20 CFR
416.967(b).
Id.
The ALJ found that Gerard’s allegations regarding his limitations were not entirely
credible. (Tr. 18.) In determining Gerard’s RFC, the ALJ indicated that he was assigning “little
weight” to the opinion of treating physician Ana Danielyan, M.D. (Tr. 20.) The ALJ assigned
“some weight” to the opinion of state agency medical consultant Kenneth R. Smith, M.D. Id.
The ALJ further found that Gerard has no past relevant work. Id. The ALJ applied the
Medical-Vocational Guidelines to find that there were jobs that exist in significant numbers in the
national economy that Gerard can perform. (Tr. 21.) The ALJ therefore concluded that Gerard
has not been under a disability, as defined in the Social Security Act, since October 15, 2012, the
date the application was filed.
The ALJ’s final decision reads as follows:
Based on the application for supplemental security income
protectively filed on October 15, 2012, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 22.)

3

The presence of bone in soft tissue where bone typically does not exist. Stedman’s Medical
Dictionary, 632 (28th Ed. 2006).
Page 3 of 22 

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
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 eCourt 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.
Page 4 of 22 

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
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003). Courts should disturb the administrative decision only if it falls outside the available
“zone of choice” of conclusions that a reasonable fact finder could have reached. Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006).
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).
Page 5 of 22 

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
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

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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
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.

Page 7 of 22 

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).
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. ''

Page 8 of 22 

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
1.

Opinion Evidence and RFC
Gerard argues that the ALJ erred in discrediting the opinion of treating physician Dr.

Danielyan, and in relying on the opinion of non-examining state agency physician Dr. Smith in
determining Gerard’s RFC. Gerard also argues that the ALJ erred in failing to obtain evidence
from a vocational expert. The undersigned will discuss these claims in turn.
On August 27, 2013, Dr. Danielyan completed a Medical Assessment of Ability to do
Work-Related Activities (Physical). (Tr. 347-48.) Dr. Danielyan indicated that Gerard was
diagnosed with cervical spinal degenerative joint disease. (Tr. 347.) Dr. Danielyan expressed
the opinion that Gerard could lift or carry seven pounds; needs to change positions and rest every
hour for ten to twenty minutes; could never perform postural activities; was limited in his ability to
reach, handle, push, and pull; and must avoid heights, vibrations, and machinery. (Tr. 347-48.)
Dr. Danielyan stated that Gerard was unable to perform sustained competitive full-time work
because “he is in pain even without any employment/work,” and he rests and changes positions
hourly. (Tr. 347.)
On June 11, 2014, Dr. Danielyan completed a second assessment, in which she listed
Gerard’s diagnoses as cervical spine degenerative joint disease and spinal stenosis. (Tr. 373.)
She stated that Gerard’s symptoms included constant pain in his neck that radiates to his arms, and

Page 9 of 22 

tingling/numbness in his hands. Id. Dr. Danielyan indicated that Gerard had the same
limitations as she had previously found, and that his condition still prevented him from engaging in
any kind of sustained full-time competitive employment. Id.
“‘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)). Opinions from
medical sources who have treated a claimant typically receive more weight than opinions from
one-time examiners or non-examining sources. See 20 C.F.R. § 416.927(c)(1)–(2). However,
the rule is not absolute; a treating physician’s opinion may be disregarded in favor of other
opinions if it does not find support in the record. See Casey v. Astrue, 503 F.3d 687, 692 (8th Cir.
2007). The treating physician’s opinion should be given controlling weight when it is supported
by medically acceptable laboratory and diagnostic techniques and it must be consistent with other
substantial evidence in the case record. Hacker v. Barnhart, 459 F.3d 935, 937 (8th Cir. 2006).
See also 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (listing “[s]upportability” as a factor to be
considered when weighing medical opinions). Inconsistencies may diminish or eliminate weight
given to opinions. Hacker, 459 F.3d at 937. See also Papesh v. Colvin, 786 F.3d 1126, 1132
(8th Cir. 2015) (holding that a treating physician’s opinion “may have ‘limited weight if it
provides conclusory statements only, or is inconsistent with the record’”) (quoting Samons v.
Astrue, 497 F.3d 813, 818 (8th Cir. 2007)). An ALJ “may discount or even disregard the opinion
... where other medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the credibility of such
opinions.” Id. (quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)).

Page 10 of 22 

If an ALJ declines to ascribe controlling weight to the treating physician’s opinion, she
must consider the following factors in determining the appropriate weight: length and frequency of
the treatment relationship; nature and extent of the treatment relationship; evidence provided by
the source in support of the opinion; consistency of the opinion with the record as a whole; and the
source’s level of specialization. 20 C.F.R. §§ 404.1527(c); 416.927(c). Whether the ALJ grants
the treating physician’s opinion substantial or little weight, “[t]he regulations require that the ALJ
‘always give good reasons’ for the weight afforded to a treating physician’s evaluation.” Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005). “Failure to provide good reasons for discrediting a
treating physician’s opinion is a ground for remand.” Reed v. Barnhart, 399 F. Supp.2d 1187,
1194 (E.D. Mo. 2004).
The ALJ stated that he was assigning “little weight” to Dr. Danielyan’s opinion for
the following reasons:
[D]uring the period at issue, the doctor noted [Gerard] was negative for decreased
mobility, joint pain, muscle spasm, muscular atrophy, musculoskeletal tenderness
and weakness, normal gait, and the doctor cited to normal mobility and curvature in
his cervical, thoracic, and lumbar spine, with no tenderness and a full range of
motion with no joint deformity (Exhibit D6F/4-9). Moreover, the opinion was
inconsistent with the doctor’s other findings noted above which were fairly benign
from his treatment visits. The undersigned accords no weight to the portion of the
opinions that find the claimant disabled since that is an opinion reserved to the
Commissioner.
(Tr. 20.)
Dr. Danielyan’s treatment notes are summarized as follows:
On April 13, 2012, Gerard presented with complaints of lower back pain that radiated to the
right thigh. (Tr. 306.) He indicated that trauma occurred due to a fall he sustained at work in
1980. Id. Gerard’s symptoms were aggravated by ascending and descending stairs, bending,
changing positions, daily activities, extension, flexion, lifting, and lying/rest. Id. Gerard also

Page 11 of 22 

reported hyperplasia of prostate, which was being followed by a urologist and was controlled on
medications; dizziness that was improving; alcohol abuse; and hypertension. Id. Upon physical
examination, Dr. Danielyan noted lumbar spine tenderness, and severe pain with motion. (Tr.
307.) Dr. Danielyan diagnosed Gerard with benign hypertension, hyperplasia of prostate, alcohol
dependence, and dizziness. (Tr. 308.)
On December 14, 2012, Gerard complained of bilateral posterior neck pain, which radiated
to the right upper arm, right elbow, right forearm, right hand and right fifth finger. (Tr. 336.) He
also reported occasional right upper extremity weakness. Id. Gerard’s pain was aggravated by
turning his head and twisting. Id. Upon examination, Dr. Danielyan noted moderate pain with
motion, no sensory loss, no motor weakness, intact balance and gait, and intact coordination. (Tr.
338.) This December 2012 visit was the first time Dr. Danielyan diagnosed Gerard with
intervertebral disc disorder with myelopathy,4 cervical. Id. She referred Gerard to a pain
management physician, and ordered an MRI of the cervical spine. Id.
On January 18, 2013, Gerard complained of worsened neck pain. (Tr. 349.) Dr.
Danielyan did not provide physical exam findings, but in the “Review of Systems” section, she
noted numbness but no decreased mobility, joint pain, muscle spasms, muscular atrophy, musculoskeletal tenderness, or weakness. (Tr. 349-50.) Dr. Danielyan diagnosed Gerard with
intervertebral disc disorder with myelopathy, cervical; and prescribed Hydrocodone-Acetaminophen5 for pain. (Tr. 350.)
On May 17, 2013, Gerard complained of neck pain and left big toe pain. (Tr. 352.) Upon
examination, Gerard’s gait was normal, he had no spinal tenderness, and normal mobility and

4

Disorder of the spinal cord. Stedman’s at 1270.
Hydrocodone-Acetaminophen, or Vicodin, is indicated for the relief of moderate to moderately
severe pain. See Physician’s Desk Reference (“PDR”), 1918 (70th Ed. 2016).
5

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curvature of the spine. (Tr. 354.) Dr. Danielyan noted mild gouty arthritis of the left big toe.
Id. Dr. Danielyan diagnosed Gerard with intervertebral disc disorder with myelopathy, cervical;
and acute gouty arthropathy. Id. She added Flexeril.6 Id.
On July 25, 2013, Gerard complained of pain in the lower back, upper back, bilateral
elbow, bilateral knee and neck; and depression. (Tr. 356.) Dr. Danielyan diagnosed Gerard with
osteoarthritis; intervertebral disc disorder with myelopathy, cervical; depression; and pain in joint,
multiple sites. (Tr. 357.)
On August 29, 2013, Gerard complained of depression, neck pain, and back pain. (Tr.
359.) Dr. Danielyan’s assessment was depression; pain in joint, multiple sites; intervertebral disc
disorder with myelopathy, cervical; and back pain with radiation, unspecified. (Tr. 360.)
On January 30, 2014, Gerard presented with complaints of dysuria. (Tr. 361.) Dr.
Danielyan’s assessment was dysuria,7 depression, and back pain with radiation. (Tr. 362.)
On March 27, 2014, Gerard complained of increased neck pain after having fallen at home
three weeks earlier. (Tr. 364.) He also reported joint pain, numbness and tingling. Id. Upon
examination, Gerard’s gait was non-antalgic and he was able to heel-and-toe-walk normally; and
no spinal tenderness was noted. (Tr. 366.) Gerard’s spinal range of motion was as follows:
external rotation was limited to 45 degrees, extension was 55 degrees, flexion was 45 degrees,
right lateral flexion was 40 degrees, left lateral flexion was 40 degrees, right rogation was 70
degrees, and left rotation was 70 degrees.8 Id. Dr. Danielyan indicated that Gerard had no
restriction on flexion, extension, lateral bending, or lateral rotation. Id. Finally, Dr. Danielyan

6

Flexeril is indicated for the treatment of muscle spasms. See WebMD, http://
www.webmd.com/drugs (last visited March 15, 2017).
7
Difficulty or pain in urination. Stedman’s at 604.
8
Dr. Danielyan did not set out the normal range of motion values. Dr. Danielyan also did not
specify the area of the spine she was testing, although it appears that she was referring to the
cervical spine.
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noted that Gerard had severe pain with motion of the cervical spine. Id. She diagnosed Gerard
with cervical myelopathy and cervicalgia. (Tr. 367.)
The ALJ accurately pointed out that Dr. Danielyan’s findings in January 2013 and May
2013 were normal. Specifically, on January 18, 2013, Dr. Danielyan noted numbness but no
decreased mobility, joint pain, muscle spasms, muscular atrophy, musculoskeletal tenderness, or
weakness. (Tr. 349-50.) On Gerard’s May 17, 2013 examination, Dr. Danielyan noted that his
gait was normal, he had no spinal tenderness, and normal mobility and curvature of the spine.
(Tr. 354.) Dr. Danielyan also noted Gerard had a normal gait in December 2012 and May 2014.
(Tr. 338, 366.) The ALJ found that over the two years of treatment from Dr. Danielyan, the
treatment was “essentially routine and/or conservative in nature” and Dr. Danielyan “did not cite
to limitations that were indicative of a disabled individual.” Gerard was treated by Dr. Danielyan
on a total of seven occasions which generally resulted in her prescribing medications to Gerard, as
well as discussing his diet and exercise. (Tr. 335, 338, 350, 354, 357, 360, 367.) The only
treatment referral was for pain management on December 14, 2012. (Tr. 338.)
A treating physician’s opinion can be discounted when it is inconsistent with the
physician’s treatment notes. See Davidson v. Astrue, 501 F.3d 987, 990-91 (8th Cir. 2007)
(affirming an ALJ’s decision to discount a physician’s later opinion on a plaintiff’s conditions
where the physician’s “treatment notes, recorded over the course of two years, contain few hints of
the serious physical limitations that [the physician] would later attribute to” the plaintiff).
Additionally, the ALJ accurately noted that Dr. Danielyan’s opinion that Gerard is unable
to work is entitled to no weight, as this is an issue reserved to the Commissioner. See Miller v.
Colvin, 784 F.3d 472, 479 (8th Cir. 2015) (noting that the ultimate disability determination is
reserved to the ALJ); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“Treating physicians'

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opinions are not medical opinions that should be credited when they simply state that a claimant
cannot be gainfully employed, because they are merely opinions on the application of the statute, a
task assigned solely to the discretion of the Commissioner.”). Furthermore, although medical
source opinions are considered in assessing RFC, the final determination of RFC is left to the
Commissioner. See 20 C.F.R. §§ 404.1527(e)(2); 416.927(e)(2).
The undersigned finds that the ALJ provided sufficient reasons for discrediting Dr.
Danielyan’s opinion as her treatment notes revealed normal findings on multiple examinations and
the treatment for Gerard’s reported pain and tenderness was essentially routine and conservative.
The ALJ concluded that Gerard had the RFC to perform “the full range of light work.”
(Tr. 17.) Light work is defined as work that involves “lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b).
Jobs considered light work require “a good deal” of walking or standing or if it involves sitting
most of the time with “some pushing and pulling of arm or leg controls.” Id.
In reviewing Gerard’s activities of daily living, the ALJ noted Gerard is able to: prepare
meals three nights per week for himself and his uncle, clean his house, do laundry, perform limited
yard work, shop for groceries thirty minutes per week, handle a savings account, use a checkbook,
watch television, solve word puzzles, play board games with others, and work on lawn mowers.
(Tr. 20, referring to the Function Report at Tr. 265-269.) At the hearing, Gerard testified that: he
occasionally shops for groceries with his girlfriend, he performs some household chores, and his
ability to perform yard work is limited. (Tr. 118-19.) Gerard stated that kids had been mowing
his lawn since early 2013 because “they like playing [on] the lawnmower.” Id. at 118. Gerard
added that he “can actually cut with the. . .riding mower, but when [he] get[s] the trimmer out ...
[he] can’t bend like that.” Id.

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The ALJ stated that he was according “some weight” to the opinion of the non-examining
state agency physician, Dr. Smith. On January 16, 2013, Dr. Smith expressed the opinion that
Gerard was capable of performing light work, and had the additional postural limitations of only
occasional climbing ramps or stairs; climbing ladders, ropes, or scaffolds; balancing; stooping;
kneeling; crouching; and crawling. (Tr. 138-39.) The ALJ indicated that he agreed with Dr.
Smith’s exertional limitations, but found that the record failed to support the postural limitations
cited by Dr. Smith and noted that Gerard was able to “perform a number of daily activities.” (Tr.
20.)
The Court finds that the ALJ properly considered the opinion of Dr. Smith. As a state
agency physician, Dr. Smith 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 Gerard asserts that Dr. Smith’s
opinion is entitled to less weight because it was provided prior to some of the medical evidence,
“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. 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).
The ALJ also provided a sufficient explanation for declining to include the postural
limitations found by Dr. Smith in noting that Gerard was able to perform a wide range of daily

Page 16 of 22 

activities.

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 inconsistency.”) (citations omitted).
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 his 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 v. Apfel, 245 F.3d 700, 703-04
(8th Cir. 2001); McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).9 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. 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 909, 927 (8th Cir. 2011).
In this case, the RFC formulated by the ALJ is supported by substantial evidence in the
record as a whole. The ALJ did not rely on the opinion of Dr. Smith alone. He considered Dr.

9

Although an RFC must be based upon “some medical evidence,” there is no requirement that the
RFC align with, or be based upon, a specific medical opinion of record. See Martise v. Astrue,
641 F.3d 909, 927 (8th Cir. 2011) (observing that 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);
Halverson v. Astrue, 600 F.3d 922, 933-34 (8th Cir. 2010) (holding that medical opinion evidence
was not necessary to support the RFC where the ALJ considered the medical records, the
claimant’s statements, and other evidence in making the RFC determination); Cox v. Astrue, 495
F.3d 614, 619 (8th Cir. 2007) (even though RFC assessment draws from medical sources for
support, it is ultimately an administrative determination reserved to the Commissioner). The ALJ
is required to rely upon medical evidence, but not medical opinion evidence. See Martise, 641
F.3d at 927.

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Danielyan’s records, which consistently noted no sensory loss or motor weakness, normal range of
motion, and a normal gait. (Tr. 338, 354, 357, 366.) The second MRI of the cervical spine
Gerard underwent in April 2014, after Gerard suffered a fall at home, did reveal findings including
mild central spinal canal stenosis and foraminal encroachment. (Tr. 369.) At Gerard’s March
2014 visit with Dr. Danielyan, the month prior to the MRI, Dr. Danielyan found that Gerard’s gait
was normal; he was able to heel-and-toe-walk normal; he had no spinal tenderness; and he had no
restriction on flexion, extension, lateral bending, or lateral rotation. (Tr. 366.) These findings on
examination support the ALJ’s finding that, despite his musculoskeletal impairments, Gerard is
capable of performing light work. See Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008)
(upholding the ALJ’s finding that the plaintiff could perform light work based on largely mild or
normal objective findings regarding her back condition, despite the fact that the medical evidence
was ‘silent’ with regard to work-related restrictions such as the length of time she [could] sit,
stand, and walk and the amount of weight she can carry”); Flynn v. Astrue, 513 F.3d 788, 793 (8th
Cir. 2008) (finding that physicians’ observations that the claimant had normal muscle strength and
mobility constituted medical evidence supporting the ALJ’s conclusion that the claimant could lift
20 pounds occasionally and 10 pounds frequently).
The ALJ thoroughly considered Gerard’s complaints in making his credibility
determination, noting:
With regard to the allegations, [Gerard] complained during his treatment in April
2012 of lower back pain that radiated to his right thigh [ ]. The pain originated from
a fall that occurred while working in January 1980. The symptoms were aggravated
by ascending and descending stairs, bending, changing positions, daily activities,
extension, flexion, lifting, and lying/rest. He testified that his limited to sitting for
30-45 minutes at a time, standing for 10-15 minutes at a time, and walking 10 minutes
at a time due to neck and back pain, and occasional gout. He stated in his function
report that he has trouble dressing, bathing, and using the toilet [ ]. Overall, he has
trouble with lifting, standing, walking, sitting, squatting, bending, kneeling, climbing
Page 18 of 22 

stairs, reaching using his hands, and completing tasks [ ].
(Tr. 18.) After careful consideration of the evidence, the ALJ found Gerard’s:
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible. . .
Id.
The ALJ also considered factors detracting from Gerard’s credibility when determining his
RFC. For example, the ALJ noted that there were significant gaps in Gerard’s treatment with Dr.
Danielyan, including January to May 2013, and August 2013 to March 2014. (Tr. 19.) He stated
that, although Gerard has received medical treatment for his impairments, that treatment has been
essentially routine or conservative in nature. Id. It is true that significant gaps in treatment can
undermine a claimant’s credibility. Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008).
In a similar vein, Gerard’s history of seeking conservative treatment is consistent with the
ALJ's finding that Gerard has the RFC to perform the full range of light work. The Eighth Circuit
has considered a patient's history of obtaining conservative treatment when evaluating his or her
subjective complaints of disabling pain or symptoms. Kamann v. Colvin, 721 F.3d 945, 950–51
(8th Cir. 2012) (noting that the ALJ properly considered that the claimant was seen “relatively
infrequently for his impairments despite his allegations of disabling symptoms”); Casey v. Astrue,
503 F.3d 687, 693 (8th Cir. 2007) (noting that the claimant sought treatment “far less frequently
than one would expect based on the [symptoms] that [he] alleged”); Black v. Apfel, 143 F.3d 383,
386 (8th Cir. 1998) (conservative treatment and no surgery is consistent with discrediting the
claimant). The record shows that Gerard sought treatment for his neck and back pain
infrequently. Specifically, Gerard was treated by Dr. Danielyan seven times in two years. He
cited back pain during his first visit (April 13, 2012); moderate neck pain for the next five visits,

Page 19 of 22 

one of which included a report of back pain (on August 29, 2013); and increased neck pain10
during the last visit following a fall at home in early March 2014. This record is inconsistent with
his allegations of disabling back pain since October 15, 2012.
The ALJ also noted that Gerard had no earnings during 1998-2000, and 2003-2013; and he
earned only $1,285 in 2001 and $3,474 in 2002. (Tr. 20, 247-51.) The ALJ accurately stated
that the fact that Gerard worked only sporadically prior to his alleged onset of disability detracts
from the credibility of his complaints. Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir.
2004) (claimant’s credibility lessened when considering sporadic work record reflecting relatively
low earnings and multiple years with no reported earnings). In addition, Gerard testified at the
hearing that he quit his last job stuffing envelopes only because he did not get paid. (Tr. 109-10.)
See Medhaug v. Astrue, 578 F.3d 805, 816-17 (8th Cir. 2009) (it is relevant to a claimant’s
credibility that she stopped working for reasons other than her medical condition).
The Court finds that the ALJ’s RFC determination is supported by substantial evidence in
the record, including the medical evidence and Gerard’s testimony regarding his limitations. The
ALJ accounted for Gerard’s complaints of chronic pain in limiting him to light work.
2.

Step Five Determination
Gerard also argues that the ALJ erred in relying upon the Medical-Vocational Guidelines at

step five without eliciting the testimony of a vocational expert (“VE”). Gerard contends that the
ALJ failed to consider how Gerard’s pain and other limitations would affect his RFC.
“If nonexertional impairments exist that limit the claimant’s ability to perform the full
range of work in a particular category, then the ALJ cannot rely exclusively on the grids to

10

Gerard’s Disability Report did not include neck pain as a physical condition limiting his ability to
work. (Tr. 257.) The ALJ, nevertheless, found that Gerard had the severe impairment of
degenerative disc disease of the cervical spine. (Tr. 16.)
Page 20 of 22 

determine disability but must consider vocational expert testimony.” Frankl v. Shalala, 47 F.3d
935, 937 (8th Cir. 1995) (emphasis added). On the other hand, “[i]f the claimant's characteristics
do not differ significantly from those contemplated in the Medical–Vocational Guidelines, the ALJ
may rely on the Guidelines alone to direct a finding of disabled or not disabled.” Lucy v. Chater,
113 F.3d 905, 908 (8th Cir. 1997) (emphasis added). See also Reynolds v. Chater, 82 F.3d 254,
258-59 (8th Cir. 1996) (“Where [ ] the ALJ properly discredits the claimant’s complaint of a
nonexertional impairment, the ALJ is not required to consult with a vocational expert and may
properly rely on the vocational guidelines at step five.”). Moreover, “‘an ALJ may use the
Guidelines even though there is a nonexertional impairment if the ALJ finds, and the record
supports the finding, that the nonexertional impairment does not diminish the claimant’s residual
functional capacity to perform the full range of activities listed in the Guidelines.’” Lucy, 113
F.3d at 908 (quoting Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir. 1988)).
In this case, the ALJ discredited Gerard’s allegations regarding the severity of his pain.
Pain itself is a symptom, not a medically determinable impairment. See 20 C.F.R. § 416.969a(a);
SSR96-4p (“No symptoms or combination of symptoms by itself can constitute a medically
determinable impairment.). The proper issue for consideration is whether Gerard’s pain resulted
in nonexertional limitations significantly limiting his ability to perform the full range of light
work. See Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005) (finding that the ALJ properly
discredited the claimant’s allegations of the severity of pain and found that the claimant’s pain did
not diminish his ability to perform the full range of sedentary work).
Gerard does not challenge the ALJ’s credibility analysis and the undersigned finds that it is
based on substantial evidence. The Court has also found that the ALJ’s RFC determination is
based on substantial evidence. Because the ALJ found that Gerard had no significant

Page 21 of 22 

nonexertional limitations and was thus capable of the full range of light work, the Court finds that
the ALJ was not required to obtain the testimony of a VE to determine whether there is work that
Gerard can perform. See Lucy, 113 F.3d at 908; Reynolds, 82 F.3d at 258-59. The Court further
finds that the ALJ’s reliance upon the Guidelines is supported by substantial evidence and that it is
consistent with the Regulations and case law.
Conclusion
For all of the foregoing reasons, Gerard’s allegations that the ALJ erred are unavailing.
The Commissioner's decision is supported by substantial evidence on the record as a whole, and
should therefore be affirmed. Reversal is not required where “substantial evidence exists in the
record that would have supported a contrary outcome,” or because the case could have been
decided differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (citations omitted).
Gerard 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.” Hacker, 459 F.3d at 936. It must
therefore be affirmed. Accordingly, Judgment will be entered separately in favor of Defendant in
accordance with this Memorandum.

Dated: March 31, 2017
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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