Heintzelman v. Colvin

Filing 16

MEMORANDUM AND ORDER: For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 9/18/17. (JAB)

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

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No. 4:16 CV 907 DDN

MEMORANDUM AND ORDER
This action is before the court for judicial review of the final decision of the
Commissioner of Social Security that plaintiff Brian Heintzelman was not disabled, and,
thus, not entitled to disability insurance benefits under Title II of the Social Security Act.
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 decision of the Commissioner is affirmed.

BACKGROUND
Plaintiff was born in 1971. (Tr. 170). On October 1, 2012, he filed an application
for disability insurance benefits, alleging an onset date of September 14, 2012. (Id.).
Plaintiff alleged disability due to a neck injury, a back injury, and neck and back
surgeries. (Tr. 67, 206). The claim was denied initially in September 2013. (Tr. 11216). Plaintiff received a hearing before an administrative law judge (ALJ) on April 1,

1

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

2015. (Tr. 29-31, 119). At this hearing, plaintiff and a vocational expert (VE) testified.
(Tr. 29-66). On April 8, 2015, the ALJ determined that plaintiff was not disabled.
The Appeals Council of the Social Security Administration denied plaintiff’s
request for a review of the ALJ’s decision. Therefore, the ALJ’s decision is the final
decision of the Commissioner that is now subject to judicial review.

LEGAL PRINCIPLES OF JUDICIAL REVIEW
In reviewing a final decision denying Social Security disability benefits, the court
may not reconsider the administrative record and make its own findings and conclusions
on whether or not plaintiff is disabled. Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.
1992).

Rather, the court must decide whether the ALJ’s decision is based upon

substantial evidence on the record as a whole and the ALJ applied the applicable legal
standards. Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011). The court “may not
reverse… merely because substantial evidence would support a contrary outcome.” Id.
Substantial evidence is evidence that a reasonable mind might accept as adequate to
support a conclusion. Id. (citations omitted).
To be entitled to disability benefits under the Act, 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).
By regulations adopted under the Act, the Commissioner has established a fivestep process for determining whether a person is disabled. 20 C.F.R. § 404.1520. At
Step One the Commissioner decides whether the claimant is engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(a)(4)(i), 404.1520(b). If so, the claimant is not
disabled. If not, at Step Two the Commissioner decides whether the claimant has a
severe impairment or a combination of impairments that qualifies as severe. 20 C.F.R. §
404.1520(a)(4)(ii), 404.1520(c). “Severe impairment” is defined as any impairment or
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combination of impairments which significantly limits the claimant’s physical or mental
ability to do basic work activities. Id. If the claimant has a severe impairment that meets
the duration requirement, the Commissioner determines at Step Three whether the
claimant’s impairment meets or is medically equal to one of the deemed-disabling
impairments listed in the Commissioner’s regulation. 20 C.F.R. § 404.1520(a)(4)(iii),
404.1520(d).
If not so listed, at Step Four the Commissioner decides whether the claimant has
the RFC to perform his past relevant work. 20 C.F.R. § 404.1520(f). A claimant’s RFC
is the most he can still do in a daily work-related environment despite his limitations. 20
C.F.R. § 404.1545(a)(1); Masterson v. Barnart, 363 F.3d 731, 737 (8th Cir. 2004.
If the claimant can perform his past relevant work, he is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv). If he cannot perform his past relevant work, at Step Five the burden
shifts to the Commissioner to demonstrate that the claimant retains the RFC to perform
other work that is available in substantial numbers in the national economy and that is
consistent with the claimant’s vocational factors of age, education, and work experience.
20 C.F.R. § 404.1520(a)(4)(v); Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010).
MEDICAL RECORD
The court accepts and adopts the parties’ unopposed statements of relevant facts
and descriptions of plaintiff’s medical record. The court will discuss specific evidence
from the medical record as needed.
ALJ HEARING
At the hearing before the ALJ, plaintiff testified to the following facts. In 2011,
he was working in a dump truck at a road construction site when a tractor trailer hit him.
(Tr. 36-38). He worked through 2011, then had a surgical fusion in his lower back and a
disk replaced in his neck. (Tr. 38). After these surgeries, his neck “feels great,” with “no
more shooting pain” down his arm, and his legs no longer have constant pain or fall out
from underneath him. (Tr. 39). However, he is still having low back problems when he
is on his feet for more than 45 minutes. (Tr. 39-40). He has to alternate between
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standing and sitting. (Tr. 40). When sitting “it’s not so bad,” if he can bend the chair
backward a bit, but it depends on the chair. (Tr. 40). He is able to drive and does so, but
he prefers not to, because he does not like being on the road with tractor trailers. (Tr. 41).
In 2014, plaintiff earned about $7,600 working for Quality Building Products, filling in
for a worker who had quit. Plaintiff drove a forklift and loaded trucks. (Tr. 43). The
manager of the company is a friend of plaintiff’s and accommodated plaintiff’s
restrictions. (Tr. 42-43). Plaintiff was allowed to sit in the break room or leave at will.
(Tr. 43). He would generally work four to seven hours per day. (Tr. 45).
Plaintiff testified that since the accident, he has a shooting or stabbing head pain
“constantly . . . it’s not every minute of every day, but it’s all day long . . . it comes and it
goes.” (Tr. 47). He has experienced only 23 days in 4 years when he felt no head pain.
Severe head pain ranges from five to ten minutes at a time to lasting one to two days.
(Tr. 47). He gets severe migraines one to two times a month. During these severe
migraines, he is irritable, and he lies down but cannot sleep without medication. (Tr. 4849).
During a typical day, plaintiff alternates between sitting in a recliner and watching
television and going downstairs and walking on a treadmill for up to 20 minutes. Once a
week, he does loads of laundry and folds clothes, though he does not carry the laundry
baskets up and down the stairs. He helps his children with their homework unless he is
having a bad day, and he will prepare microwave meals for them. Plaintiff does no yard
work, but continues to occasionally work for his friend at Quality Building Products. (Tr.
50-52).
The VE testified that a person with plaintiff’s age, education, and work
experience, who can lift and carry up to 20 pounds occasionally; who can push or pull
25-30 pounds occasionally; who occasionally stoop, kneel, crouch, or crawl; who can
occasionally work with up to 15 pounds overhead; who must avoid working around
hazards like unprotected heights or dangerous machinery; who can perform simple,
routine tasks with occasional changes in a routine work setting; and who must alternate
between sitting and standing on an hourly basis while remaining at the work station could
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not perform plaintiff’s past relevant work as a tow-truck driver, dump truck driver, or
highway maintenance worker. (Tr. 58-60). However, the VE testified that such an
individual could still work as an inspector or as a cashier. (Tr. 60). The VE testified that
these jobs exist in significant numbers in the national economy. (Tr. 60-61). Upon
questioning by plaintiff’s attorney, the VE testified that, if the hypothetical individual
needed to regularly take more than two days off of work a month, it would eliminate the
jobs of inspector and cashier. (Tr. 62-63).
DECISION OF THE ALJ
In his decision, the ALJ determined the following:
1. Plaintiff met the insured status for a claim under Title II of the Act through
December 31, 2015.
2. Plaintiff has not engaged in substantial gainful activity since September 14,
2012, the alleged disability onset date.
3. Plaintiff has the following severe impairments: degenerative disc disease of the
cervical and lumbar spine following cervical and lumbar spine surgeries, headaches, and
pain induced mood disorder.
4. Plaintiff does not have an impairment or combination of impairments that
meets or medically equals the severity of an impairment on the Commissioner’s List of
disabling impairments.
5. Plaintiff has the residual functional capacity (RFC) to perform light work as
defined in 20 C.F.R. § 404.1567(b),2 with the following limitations: Plaintiff can lift or
carry no more than 20 pounds occasionally; can stand or sit continuously without
alternating his position on an hourly basis without leaving the work station; can push or
pull no more than 25-30 pounds; can stoop, kneel, crouch, or crawl no more than
occasionally; can work overhead with no more than 15 pounds; must avoid working

2

 Section

404.1567(b) generally defines "light work" 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."
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around hazards (unprotected heights or dangerous machinery); and could perform no
more than simple, routine tasks with no more than occasional changes in the routine work
environment.
6. Plaintiff is unable to perform his past relevant work as a tow truck driver, a
dump truck driver, or a heavy maintenance worker.
7. Being born on October 11, 1971, plaintiff is considered a younger person under
the regulations.
8. Plaintiff has a high school education and is able to communicate in English.
9.

Plaintiff Medical-Vocational Rules, plaintiff is not disabled, regardless of

whether he has transferable job skills.
10. Considering plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that plaintiff can perform,
i.e., cashier and inspector.
11. In consequence, through the date of the ALJ’s decision plaintiff was not
disabled. (Tr. 3-24).
More specifically, the ALJ determined that plaintiff’s part-time work did not rise
to the level of substantial gainful activity and that plaintiff had not engaged in substantial
activity since the September 14, 2012 alleged onset date. (Tr. 15). With respect to
plaintiff’s mental impairment, the ALJ found that the “paragraph B” and “paragraph C”
criteria of the applicable regulation were not met, because plaintiff did not have at least
two “marked” limitations or repeated episodes of decompensation. (Tr. 16).
In determining plaintiff’s RFC, the ALJ considered all of plaintiff’s symptoms, the
extent to which these symptoms were consistent with the objective medical evidence and
other evidence, and the opinion evidence.

(Tr. 17-22).

The ALJ determined that

plaintiff’s statements concerning the intensity, persistence, and limiting effects of his
symptoms were not entirely credible for the several reasons.

(Tr. 18-22).

First,

plaintiff’s daily activities were inconsistent with his allegations of totally disabling
symptoms. (Tr. 20). The ALJ found that plaintiff “is able to essentially live and function
independently, care for his own personal needs and help provide care for his children,
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perform light household chores, walk on a treadmill, work part-time, go grocery
shopping, and drive an automobile.” (Tr. 21, 230-37). Following his neck and back
surgeries, plaintiff returned to work with some restrictions. The ALJ also found that
plaintiff’s part-time work activity as a forklift operator diminished his credibility:
“[w]ork performed during any period in which the claimant alleges disability, even when
that work activity is not substantial gainful employment, may demonstrate a level of
vigor, stamina, and emotional stability inconsistent with the allegation of disability.” (Tr.
21).
Second, the ALJ determined that the medical evidence did not support plaintiff’s
subjective complaints.

Most of his impairments were minor or did not result in

significant, long-term functional limitations. He never needed psychiatric intervention at
a hospital nor did he seek any formal mental health treatment. (Tr. 21). Diagnostic
findings in February 2013 revealed a healed fusion in his back. (Tr. 21, 572). Plaintiff
can walk independently and there is no evidence of muscle atrophy, spasm, or chronic
weakness. (Tr. 21, Ex. 15F). The ALJ determined there was no evidence of record that
plaintiff’s medication “is not generally effective when taken as prescribed,” or that it
imposes any significant adverse side effects.

(Tr. 21).

The ALJ determined that

plaintiff’s headaches were not of a frequency or severity to prevent plaintiff from
working full-time. (Tr. 21).
The ALJ gave great weight to the opinion of plaintiff’s treating orthopedic
surgeon, Thomas K. Lee, M.D. (Tr. 21-22, 599). Dr. Lee opined that plaintiff was
limited to light exertional activity with a sit/stand option and postural, manipulative, and
environmental limitations. (Tr. 599). The ALJ found his opinion to be supported by the
clinical signs, symptoms and findings, as well as corroborated by Gary W. Rucker, D.O.,
an examining physician. (Tr. 21-22, 589-95). 20 C.F.R. § 404.1527(d)(2); SSR 96-2p.
The ALJ gave little weight to the opinion of Raymond F. Cohen, D.O., who
opined that plaintiff’s headaches were debilitating, because it was a “blanket statement of
disability,” and “[c]onclusory statements that a claimant is disabled are not medical
opinions.” (Tr. 22, 600-11) He found Dr. Cohen’s opinion to be inconsistent with
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plaintiff’s minimal treatment for headache complaints; inconsistent with the other
objective medical evidence of record; inconsistent with the opinion of David M. Peebles,
M.D., who opined that plaintiff’s headaches imposed no significant limits (345-54); and
unsupported by the evidence as a whole. (Tr. 22).
The ALJ also discounted the opinion of J. Stephen Dolan, a certified rehabilitation
counselor, who opined that plaintiff experienced debilitating headaches, "which cause
profound inability to participate in daily activities," and that plaintiff "is unable to tolerate
a work schedule because of back and headache pain." (Tr. 619-20). The ALJ determined
that Mr. Dolan's opinions were not supported by the objective medical evidence. (Tr.
22).
The ALJ gave significant weight to the opinion of plaintiff’s examining
neuropsychologist, Michael V. Oliveri, Ph.D., who indicated that plaintiff’s pain-induced
depressive disorder imposed no more than mild mental limitations. (Tr. 22, 622-26). The
ALJ stated the record did not support any more severe limitation than that plaintiff was
restricted to simple work, “based on the paucity of mental health treatment and the
evidence as a whole, including the claimant’s daily activities and part-time work
activity.” (Tr. 22).
Finally, the ALJ determined that, although plaintiff is unable to perform his PRW,
considering his age, education, work experience, and RFC, and relying on VE testimony,
there are inspector and cashier jobs that exist in significant numbers in the national
economy that plaintiff can perform. (Tr. 23).
Accordingly, the ALJ determined that plaintiff is not disabled. (Tr. 24).

PLAINTIFF’S ARGUMENTS
Plaintiff argues the ALJ’s decision should be reversed, because it is not supported
by substantial evidence. More specifically he argues (1) the ALJ’s decision arbitrarily,
without explanation, adopted only a portion of the opinion of Thomas K. Lee, M.D.,
plaintiff’s treating surgeon; and (2) the ALJ failed to discuss or state the weight given to

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the opinions of Leonard Simpson, M.D., the non-treating, non-examining physician who
reviewed plaintiff’s claim file for the state agency. (Tr. 86).

DISCUSSION
A.

The Opinion of Dr. Lee
Plaintiff first argues that, although the ALJ gave Dr. Lee’s opinion “great weight,”

he erred by arbitrarily adopting only a portion of that opinion, without explanation. Dr.
Lee opined that plaintiff was limited to pushing or pulling 25-30 lbs.; plaintiff was
restricted in his bending; he should avoid repetitive stooping; he could occasionally work
overhead with 10-15 lbs.; he should lift no more than 15-20 lbs.; plaintiff needed to
change positions from sitting to standing every 45-60 minutes. (Tr. 599). The ALJ
determined plaintiff’s RFC was mostly at the upper limits of these ranges: “lifting or
carrying no more than 20 pounds occasionally; standing or sitting continuously without
alternating position on an hourly basis without leaving the work station; pushing or
pulling no more than 25-30 pounds; stooping, kneeling, crouching, or crawling no more
than occasionally; working overhead with no more than 15 pounds.” (Tr. 17).
If a treating source’s opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence,” the opinion will be given “controlling weight.” 20 C.F.R. § 404.1527(c)(2).
If the treating source is not given controlling weight, the ALJ must give “good reasons”
for discrediting the opinions. Id. The ALJ’s primary duty is to “resolve conflicts in the
evidence” and determine the weight to give each medical opinion. Hacker v. Barnhart,
459 F.3d 934, 936 (8th Cir. 2006).
As Dr. Lee was plaintiff’s treating orthopedic surgeon, the ALJ lawfully gave his
opinion great weight, if not controlling weight. The ALJ gave "good reasons" for this
assessment.

He stated that Dr. Lee “indicated in substance that the claimant was

essentially limited to light exertional level work activity with a sit/stand option and nonexertional postural, manipulative, and environmental limitations.” (Tr. 21-22, 599). The
ALJ considered Dr. Lee to be a treating specialist, and found his opinion to be “supported
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by the clinical signs, symptoms, and findings contained in the record and corroborated by
Dr. Rucker, an examining physician.” (Tr. 22, 513-41, 589-95).
The ALJ’s RFC limitations are an adaption of Dr. Lee’s limitations; the two are
not in conflict. The RFC limitations are within the range of weight and functional
limitations set forth by Dr. Lee. (Tr. 17, 599). A plaintiff’s RFC is “the most [he] can
still do despite [his] limitations,” 20 C.F.R. § 404.1545, and it was not improper for the
ALJ to limit plaintiff to “no more than” the upper limits of Dr. Lee’s ranges in describing
the most he could still do.

B.

The Opinion of Dr. Simpson
Plaintiff argues the ALJ erred by not acknowledging or addressing the opinion of

the non-examining state agency medical consultant, Dr. Leonard Simpson. (Tr. 85-86,
92-93). Plaintiff argues that unless the ALJ gives controlling weight to the opinion of a
plaintiff’s treating physician, the governing rules require the ALJ to “explain in the
decision the weight given to the opinions of a State agency medical or psychological
consultant.” (Doc. 9) (quoting 20 C.F.R. § 404.1527(e)(2)(ii)(2017)). Relatedly, §
404.1513a (2017) provides:
(b) Administrative law judges . . . will consider prior administrative
medical findings and medical evidence from our Federal or State agency
medical or psychological consultants as follows:
(1) Administrative law judges are not required to adopt any prior
administrative medical findings, but they must consider this
evidence according to §§ 404.1520b, 404.1520c, and 404.1527, as
appropriate, because our Federal or State agency medical or
psychological consultants are highly qualified and experts in Social
Security disability evaluation.
20 C.F.R. § 404.1513a(b)(1). Section 404.1520b requires the consideration of evidence
by its completeness and consistency, stating that the Commissioner may seek additional
evidence in a variety of forms and need not discuss conclusory statements made by others
about the legal status of a claimant’s limitations (e.g., a statement that a claimant is
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disabled). 20 C.F.R. § 404.1520b, esp. § 404.1520b(c)(2). Section 404.1520c only
applies to claims filed after March 27, 2017. Accordingly, it appears that the controlling
standard for review of the ALJ’s decision as to a state agency disability examiner is that
he must properly consider this evidence, but is not required to adopt its legal conclusion
of disabled or not disabled.
Dr. Simpson opined on March 27, 2013, that plaintiff was “limited to significantly
less than a full range of sedentary work” and, “[b]ased on the documented findings,” he
stated his determination of plaintiff as “Disabled.” (Tr. 92). He opined that improvement
could be expected by February 1, 2014. (Tr. 93). The Social Security Office of Quality
Performance reviewed Dr. Simpson’s opinion and stated there was insufficient medical
evidence to fully evaluate plaintiff’s claim, and more evidence was needed to clarify the
duration of his impairments. (Tr. 93, 95). By September 19, 2013, the state agency
changed its ultimate decision to "Not Disabled." (Tr. 109).
Failing to cite Dr. Simpson's medical opinion does not, by itself, indicate it was
not considered by the ALJ. Hensley v. Colvin, 829 F.3d 926, 932 (8th 2016) ("[A]n ALJ
is not required to discuss every piece of evidence submitted.") (citation omitted). An
“ALJ may reject the conclusions of any medical expert, whether hired by the claimant or
the government, if they are inconsistent with the record as a whole." Pearsall v.
Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001). Furthermore, the opinion of a nonexamining, non-treating physician, like Dr. Simpson, does not generally constitute
substantial evidence. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
Dr. Simpson did not examine plaintiff, and the record contains a significant
amount of examination reports and surgical records, as well as the opinions of examining
and treating physicians, including plaintiff’s treating surgeon, Dr. Lee, to whom the ALJ
gave great weight. (Tr. 19-22, 509-611, 622-26). The ALJ in this case stated that he
considered “all the evidence,” and then thoroughly discussed and evaluated relevant
evidence throughout his decision. (Tr. 13, 15-23). Although the ALJ did not specifically
mention Dr. Simpson’s state agency report, the ALJ considered and addressed the issues

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discussed by Dr. Simpson without specifically mentioning him. The ALJ sufficiently
considered and evaluated the record evidence.

CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.

S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE

Signed on September 18, 2017.

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