Brown v. Colvin
MEMORANDUM OPINION..After determining Browns RFC, the ALJ found that she was capable of performing pastrelevant work as a security guard and assistant collections supervisor, and was not, therefore disabled. (Tr. 18.) She found in the alternative, wi th the assistance of a vocational expert, that Brown could perform other jobs existing in significant numbers in the national economy. Id. Brown does not challenge the ALJs step five findings. Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 9/12/17. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Case No. 4:16 CV 1452 ACL
Plaintiff Robin Brown brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of her application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act.
An Administrative Law Judge (“ALJ”) found that, despite Brown’s severe back
impairment, she was not disabled as she 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.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
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I. Procedural History
Brown filed an application for DIB on January 13, 2014, claiming that she became unable
to work due to her disabling condition on September 21, 2012, due to degenerative disc disease.
(Tr. 230-31.) Brown’s claim was denied initially. (Tr. 83.) Following an administrative
hearing, Brown’s claim was denied in a written opinion by an ALJ, dated June 26, 2015. (Tr.
11-20.) Brown 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 July 18, 2016. (Tr. 1-4.) Thus,
the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. ''
In the instant action, Brown argues that the ALJ erred “when determining Brown’s RFC in
that she erroneously discounted the well-supported opinion of Brown’s treating physician, failed
to otherwise support the RFC with substantial evidence, and did not properly consider Brown’s
subjective reports.” (Doc. 12 at 7.)
II. The ALJ=s Determination
The ALJ found that Brown meets the insured status requirements of the Social Security Act
through December 31, 2017, and has not engaged in substantial gainful activity since September
21, 2012, the alleged onset date. (Tr. 13.)
In addition, the ALJ concluded that Brown had the following severe impairments:
degenerative disc disease. Id. The ALJ further found that Brown’s medically determinable
impairment of major depressive order was not severe. (Tr. 15.) The ALJ concluded that Brown
did not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments. Id.
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As to Brown’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 light work as defined in 20 CFR 404.1567(b), meaning that
the claimant is capable of lifting or carrying 20 pounds occasionally,
lifting or carrying 10 pounds frequently, sitting for 6 hours in an
8-hour workday, and standing or walking for 6 hours in an 8-hour
workday. The claimant is capable of twisting, climbing, balancing,
stooping, crawling, crouching and kneeling for up to 1/3 of the day.
The ALJ found that Brown’s allegations regarding her limitations were not entirely
credible. (Tr. 16.) In determining Brown’s RFC, the ALJ indicated that she was assigning “no
weight” to the opinion of treating physician Jeffrey Faron, M.D., regarding Brown’s limitations.
The ALJ further found that Brown was capable of performing past relevant work as a
security guard and assistant collections supervisor. (Tr. 18.) The ALJ made the alternative
finding that there were other jobs existing in the national economy that Brown was capable of
performing, such as small parts assembler, unskilled cashier, and laundry worker. (Tr. 18-19.)
The ALJ therefore concluded that Brown has not been under a disability, as defined in the Social
Security Act, from September 21, 2012, through the date of the decision. (Tr. 20.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits filed on January 12, 2014, the claimant is not
disabled under sections 216(i) and 223(d) of the Social Security Act.
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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 Court must review the entire administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff’s vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff’s
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
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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
III.B. Determination of Disability
A disability is defined as the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any other kind of substantial gainful
work which exists … in significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
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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 (1987). “The
sequential evaluation process may be terminated at step two only when the claimant’s impairment
or combination of impairments would have no more than a minimal impact on her ability to work.”
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
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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.
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. §
Page 7 of 20
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 “record 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 “especially relevant to the ability to work are present or absent.”
20 C.F.R. '' 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. '' 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. ''
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
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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).
As previously noted, Brown argues that the ALJ erred in determining her RFC. Brown
also contends that, in determining her RFC, the ALJ erroneously discounted the opinion of treating
physician Dr. Faron, and did not properly consider her subjective complaints. The undersigned
will discuss these claims in turn, beginning with the ALJ’s credibility analysis.
Brown argues that the ALJ’s analysis of her credibility is not supported by substantial
evidence because the ALJ relied on a mistaken evaluation of Brown’s medical treatment and basic
daily activities to find that she was not credible.
As a general matter, credibility determinations “are the province of the ALJ, and as long as
‘good reasons and substantial evidence’ support the ALJ’s evaluation of credibility,” the Court
will defer to her decision. See Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016) (quoting
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). Furthermore, an ALJ “may decline to
credit a claimant’s subjective complaints ‘if the evidence as a whole is inconsistent with the
claimant’s testimony.’” Julin, 826 F.3d at 1086 (quoting Cox v. Barnhart, 471 F.3d 902, 907 (8th
Cir. 2006)). In evaluating Plaintiff’s credibility regarding the extent of her symptoms, the ALJ
must consider all of the evidence, including objective medical evidence, and evidence relating to
the factors enumerated in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), including: (1)
Plaintiff’s daily activities; (2) the duration, frequency, and intensity of Plaintiff’s pain; (3)
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of medication;
and (5) Plaintiff’s functional restrictions. See Julin, 826 F.3d at 1086; see also 20 C.F.R. §
Page 9 of 20
416.929(c). The ALJ does not need to discuss each factor separately; rather, the court will review
the record as a whole to ensure relevant evidence was not disregarded by the ALJ. See McCoy v.
Astrue, 648 F.3d 605, 615 (8th Cir. 2011); see also Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th
Cir. 2001) (“If the ALJ discredits a claimant’s credibility and gives a good reason for doing so, we
will defer to its judgment even if every factor is not discussed in depth.”).
Here, the ALJ properly discounted Brown’s credibility based upon Brown’s testimony, the
objective medical evidence of record, and Brown’s daily activities.
The ALJ first discussed Brown’s daily activities. (Tr. 16.) The ALJ recounted
information provided by Brown in her Function Report, including that Brown reported she is able
to: prepare meals, wash dishes, sweep, mop the floors, and do laundry; drive a car; drive a
motorcycle; shop for groceries and household items once a week; manage her finances; enjoy
crafting; attend barbeques and bike events; spend time on Facebook; go to friends’ houses to visit;
and lift thirty pounds on a good day, walk one to two blocks, and stand for thirty minutes. (Tr. 16,
219-26.) The ALJ also recognized Brown’s testimony that she leans on the cart when grocery
shopping, and that she has bad days on which she experiences debilitating pain and sits in a
recliner most of the day. (Tr. 16, 43, 46.) The ALJ concluded that Brown’s allegations were
inconsistent with the evidence of record. She stated that Brown “remains capable of driving a
vehicle and a motorcycle…attends bike rallies and completes her daily activities, despite her
alleged pain.” (Tr. 16.)
Brown argues that the ALJ erred in her assessment of the degree to which Brown is
restricted in her daily activities. Brown is correct that “a claimant need not prove she is
completely bedridden or completely helpless to be found disabled.” Reed v. Barnhart, 399 F.3d
917, 923 (8th Cir. 2005). Although Eighth Circuit cases sometimes send “mixed signals”
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concerning the relevance of a claimant’s daily activities in credibility determinations, the daily
activities admitted by Brown are in excess of other cases where the daily activities have undercut a
plaintiff’s credibility as to disabling pain. See Clevenger v. Social Sec. Admin., 567 F.3d 971, 976
(8th Cir. 2009) (acknowledging that the Eighth Circuit has sent “mixed signals” concerning the
importance of daily activities, but agreeing that the daily activities in that case—doing laundry,
washing dishes, changing sheets, ironing, preparing meals, driving, attending church, and visiting
friends and relatives—supported an ALJ’s decision to discredit a plaintiff’s assertions of disabling
pain). The daily activities in this case exceed those in Clevenger. See also Andrews v. Colvin,
791 F.3d 923, 929 (8th Cir. 2015) (permitting an ALJ to discount a fibromyalgia plaintiff’s
credibility in part based upon the claimant’s daily activities, including the ability to cook, clean,
drive, shop, and take care of personal grooming and hygiene); Pirtle v. Astrue, 479 F.3d 931, 935
(8th Cir. 2007) (same, daily activities of driving a manual-transmission car, shopping, performing
housework, fishing, attending church two to three times a week, caring for personal needs, and
Brown argues that the ALJ placed too much weight on her ability to ride a motorcycle.
She points to her hearing testimony that she only rides short distances on the motorcycle, and is
unable to ride long distances as she did in the past. (Tr. 43.) Brown further argues that she has
bad days, on which she remained in the recliner. The ALJ properly considered Brown’s
testimony regarding her ability to ride a motorcycle in determining her credibility. The ALJ
acknowledged Brown’s hearing testimony that she experienced bad days on which her pain
required her to remain in her recliner. She discussed the inconsistency between this testimony
and Brown’s testimony that she remained capable of riding a motorcycle. When Brown testified
that she only rides short distances, the ALJ remarked as follows: “[a]nd you can do that with the
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severe kind of back problems that you’re talking about?...I don’t see where—if you’re as bad off as
you say, and you can’t leave a recliner, I don’t know how you can drive a motorcycle. Come on.”
(Tr. 56.) The ALJ did not err in finding that Brown’s ability to ride a motorcycle even a short
distance is inconsistent with her complaints of disabling back pain. Substantial evidence supports
the ALJ’s finding that Brown’s daily activities are inconsistent with her allegations of disabling
The ALJ next found that the objective medical evidence does not support Brown’s
subjective complaints. (Tr. 16-17.) She stated that the objective imaging shows mild
degenerative changes in Brown’s lumbar spine, with no significant worsening over a two-year
period. Id. The ALJ cited the report from a lumbar MRI Brown underwent on September 12,
2014, that found “mild degenerative disc disease with changes at L4-L5 and to a lesser extent at
L5-S1 without significant worsening.” (Tr. 368.)
The ALJ stated that there is no evidence of radicular or neurological symptoms and her
physicians do not recommend surgery because there is no radiographic evidence of instability.
(Tr. 17.) In a letter to Dr. Faron dated August 27, 2014, neurosurgeon Peter Yoon, M.D., stated
that he had seen Brown for her complaints of recurrent lower back pain without any significant
radiation. (Tr. 374.) Dr. Yoon stated that Brown’s neurological examination was normal, and
that she would be a surgical candidate only if she demonstrated evidence of instability. Id. The
ALJ noted that imaging shows only mild foraminal stenosis and no significant central canal
narrowing. (Tr. 17, 362.) In addition, the ALJ stated that Brown’s physicians have prescribed
pain medication but have not documented any clinical findings supporting the severe pain alleged.
(Tr. 17.) The ALJ further noted that Brown’s physicians do not recommend aggressive treatment,
but instead referred her to physical therapy. Id. The ALJ did not err in finding Brown’s
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conservative treatment was inconsistent with her complaints of disabling pain. See Gowell v.
Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (finding that a pattern of conservative medical treatment
is a proper factor for an ALJ to consider in evaluating a claimant’s credibility).
The ALJ next stated that the record did not contain any treatment notes pertaining to
treatment after December of 2014, “so there is no objective evidence establishing a change in her
condition. However, the claimant now alleges more significant limitations in her ability to lift,
stand and walk.” (Tr. 17.) Brown argues that the ALJ erred in finding there was no evidence
after December 2014 that Brown “continued to experience symptoms,” as Dr. Faron noted painful
range of motion in February 2015. (Doc. 12 at 12.) Although Dr. Faron did note painful range of
motion in February 2015 as he had on past visits, he also found no tenderness, a normal neurologic
examination, and no other abnormalities. (Tr. 392-93.) The ALJ did not suggest that Brown had
no limitations after December 2014. Rather, the ALJ stated that there was no medical evidence
showing that her condition worsened from the time she filed her application to the time of the
hearing to support her testimony of increased limitations. The record, including the February
2015 examination of Dr. Faron, supports this statement.
An ALJ may consider the lack of objective medical evidence supporting a plaintiff’s
subjective complaints as one factor in assessing credibility. Forte v. Barnhart, 377 F.3d 892, 895
(8th Cir. 2004). Although the medical evidence in the record supports Brown’s complaints of
back pain, the medical evidence as a whole belies Brown’s allegations to the extent she claims
Brown finally claims that the ALJ did not adequately discuss her strong work history.
While the record supports a conclusion that Brown had a good work history, the fact that the ALJ
did not specifically mention that history in making her credibility determination is not fatal to the
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decision. An ALJ may still discount a claimant’s credibility despite a good work history. See
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007); see also Hepp v. Astrue, 511 F.3d 798, 806
(8th Cir. 2008); Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (explaining that an ALJ is not
required to discuss each Polaski factor); Samons v. Astrue, 497 F.3d 813, 820 (8th Cir. 2007)
(same). Any failure to more thoroughly discuss Brown’s work history amounts to, at most, an
“arguable deficiency in opinion-writing technique,” that would not require this Court to reverse
the ALJ’s decision in this matter. Hepp, 511 F.3d at 806.
In summary, the ALJ gave good reasons for discounting Brown’s subjective complaints.
Thus, the ALJ’s decision in this regard will not be disturbed. See Julin, 826 F.3d at 1086 (noting
the deference due to an ALJ’s credibility determination); Gregg v. Barnhart, 354 F.3d 710, 713
(8th Cir. 2003).
Opinion Evidence and RFC
Brown contends that the ALJ erred in discounting the opinion of treating physician Dr.
Dr. Faron completed a Medical Source Statement-Physical on June 10, 2015.2 (Tr.
430-32.) He indicated that Brown’s diagnosis was lower back pain, with clinical findings of
“debilitating pain with activities.” (Tr. 430.) Brown’s treatment was described as “frequent
office visits for narcotic refills.” Id. Dr. Faron expressed the opinion that Brown was capable of
lifting less than ten pounds frequently; can sit for fifteen minutes at a time and can sit a total of less
than two hours; can stand for thirty minutes at a time, and can stand for a total of less than two
hours; and requires multiple unscheduled fifteen-minute-long breaks due to pain. (Tr. 431-32.)
Dr. Faron also completed a form regarding Brown’s mental limitations. The ALJ found that
Brown’s mental impairment was not severe and resulted in no limitations. Because Brown does
not challenge the ALJ’s findings regarding her mental impairment, the undersigned will not
discuss this evidence.
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He found the following postural limitations: can never crawl; can rarely twist; can occasionally
stoop, balance, crouch, and climb; and can constantly twist. (Tr. 431.) Dr. Faron also indicated
that Brown would be off task due to her symptoms twenty-five percent of a typical eight-hour
workday; is incapable of even “low stress” work; would have “good days” and “bad days,” and
would miss work due to her condition more than four days per month. (Tr. 432.)
The ALJ assigned “no weight’ to Dr. Faron’s opinions, finding that they were inconsistent
with the evidence of record. (Tr. 17.) The ALJ explained that the objective imaging showed
only mild degenerative disc disease, without significant worsening over a two-year period. Id.
She stated that Brown has no evidence of radiographic instability, and no evidence of radiation or
neurological abnormalities. Id. The ALJ further found that Dr. Faron’s opinion regarding the
severity of Brown’s limitations was inconsistent with Brown’s reported daily functioning. 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)). The opinion of a
treating physician will be given “controlling weight” only if it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
The record, though, should be “evaluated as a whole.” Id. at 1013 (quoting Bentley v. Shalala, 52
F.3d 784, 785-86 (8th Cir. 1997)). The ALJ is not required to rely on one doctor’s opinion
entirely or choose between the opinions. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
Additionally, when a physician’s records provide no elaboration and are “conclusory checkbox”
forms, the opinion can be of little evidentiary value. See Anderson v. Astrue, 696 F.3d 790, 794
(8th Cir. 2012). Regardless of the decision the ALJ must still provide “good reasons” for the
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weight assigned the treating physician’s opinion. 20 C.F.R § 404.1527(d)(2).
The ALJ must weigh each opinion by considering the following factors: the examining and
treatment relationship between the claimant and the medical source, the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
whether the physician provides support for his findings, whether other evidence in the record is
consistent with the physician's findings, and the physician’s area of specialty. 20 C.F.R. §§
404.1527(c)(1)-(5), 416 .927(c)(1)-(5).
The ALJ provided sufficient reasons for discrediting Dr. Faron’s opinion. First, Dr.
Faron’s opinion was not supported by the medical evidence of record. Lumbar imaging from
2012 revealed degenerative changes in the lower lumbar spine at L4-L5, but with only mild
foraminal stenosis and no significant central canal narrowing. (Tr. 16, 362.) A subsequent
lumbar MRI revealed only mild degenerative disc disease, without significant worsening. (Tr.
16, 368.) Dr. Yoon found no abnormalities, neurological or otherwise, on physical examination.
(Tr. 371-72.) In August 2014, Brown had normal range of motion of the lumbosacral spine and
lower extremities, no tenderness to palpation, and was able to walk on her heels and toes. Id.
Dr. Faron’s own treatment notes reveal few clinical findings. Dr. Faron, an internist,
treated Brown for various complaints, including her complaints of back pain. (Tr. 266-362,
390-400.) He saw Brown on approximately fourteen occasions during the period of February
2012 through February 2015. Id. The only finding noted by Dr. Faron on physical examination
of Brown’s back was “range of motion painful.” (Tr. 296, 306, 320, 332, 344, 357, 392, 397,
400.) Dr. Faron noted no tenderness or other abnormalities. Id. He prescribed Hydrocodone3
for Brown’s pain; referred her to physical therapy; and referred her to neurosurgeon Dr. Yoon.
Hydrocodone is an opioid analgesic indicated for the relief of moderate to moderately severe
pain. See Physician’s Desk Reference (“PDR”), 605 (70th Ed. 2016).
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Id. On August 15, 2014, Dr. Faron noted that Dr. Yoon recommended continued conservative
treatment. (Tr. 394.) Although Brown consistently complained of back pain, Dr. Faron
routinely noted that Brown was “managing with hydrocodone,” or “stable.” (Tr. 317, 330, 343,
357, 397, 400.) In Dr. Faron’s most recent treatment notes, dated February 2, 2015, he stated that
Brown’s lower back pain was continuing but “stable,” and indicated that his plan was to continue
Brown’s pain medication. (Tr. 393.) Dr. Faron’s treatment notes do not support the severe
limitations articulated in the June 2015 Medical Source Statement-Physical. The form itself
provides little explanation for the findings. Notably, when asked to identify the “clinical findings
& objective signs,” Dr. Brown stated only: “debilitating pain with activities.” (Tr. 430.) As
such, Dr. Faron appeared to rely significantly on Brown’s subjective complaints of pain in
determining the limitations set forth in the form.
In discrediting Dr. Faron’s opinions, the ALJ also found that the limitations were
inconsistent with Brown’s reports of her daily functioning. (Tr. 17.) As previously discussed,
Brown is capable of driving a vehicle and a motorcycle, shopping once a week, and attending
social events. Id. The ALJ stated that, although Brown is more limited on bad days, she remains
capable of completing light housework and preparing meals. Id. An ALJ can give less weight to
a medical opinion when it is inconsistent with the evidence in the record. See Travis v. Astrue,
477 F.3d 1037, 1041 (8th Cir. 2007). The inconsistencies between Brown’s reported activities
and Dr. Faron’s opinion was a sufficient basis for discrediting Dr. Faron’s findings. See Toland v.
Colvin, 761 F.3d 931, 936 (8th Cir. 2014) (stating “if a doctor evaluates a patient as having more
physical limitations than the patient actually exhibits in her daily living, an ALJ need not ignore
the inconsistency”) (citations omitted).
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The ALJ concluded that Brown had the RFC to lift or carry twenty pounds occasionally,
lift or carry ten pounds frequently; sit for six hours in an eight-hour workday; stand or walk for six
hours in an eight-hour workday; and twist, climb, balance, stoop, crawl, crouch, and kneel for up to
one third of the day. (Tr. 18.) Brown argues that the ALJ’s RFC determination lacks the support
of substantial evidence because the ALJ improperly rejected Dr. Faron’s opinion, which was the
only opinion regarding Brown’s limitations.
Residual functional capacity means that which a person remains able to do despite her
limitations. 20 C.F.R. § 404.1545(a), Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). The
ALJ must assess a claimant’s RFC based upon all relevant, credible evidence in the record,
including medical records, the observations of treating physicians and others, and the claimant’s
own description of her symptoms and limitations. 20 C.F.R. § 404.1545(a); Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). A
claimant’s RFC is a medical question, and there must be some medical evidence, along with other
relevant, credible evidence in the record, to support the ALJ’s RFC determination. Id.; Hutsell v.
Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer, 245 F.3d at 703-04; McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000). An ALJ’s RFC assessment which is not properly informed and
supported by some medical evidence in the record cannot stand. Hutsell, 259 F.3d at 712.
However, although an ALJ must determine the claimant’s RFC based upon all relevant evidence,
the ALJ is not required to produce evidence and affirmatively prove that a claimant is able to
perform certain functions. Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at
863. The claimant bears the burden of establishing her RFC. Goff, 421 F.3d at 790.
The Eighth Circuit has considered whether the “some medical evidence” that is required to
support an RFC finding must include a medical opinion that specifically addresses the claimant's
Page 18 of 20
work-related limitations. See Flynn v. Astrue, 513 F.3d 788, 793 (8th Cir. 2008) (rejecting
argument that ALJ improperly concluded “on her own” that the claimant could lift 20 pounds
occasionally and 10 pounds frequently because the record did not include supporting medical
opinion; instead finding physicians’ observations that claimant had normal muscle strength and
mobility constituted “substantial medical evidence” supporting the RFC finding). 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, 641 F.3d at 927
(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.
The ALJ in this case properly relied on “some medical evidence” to support her RFC
finding. The ALJ considered the record evidence as a whole, including the limited findings on
examination of Dr. Faron discussed above. The ALJ also discussed the results of imaging, and
the normal examination of Dr. Yoon, including full strength, full range of motion, and a normal
gait. The ALJ also considered Brown’s statements that she was capable of lifting thirty pounds,
and continued to ride her motorcycle, albeit for short distances. Contrary to Brown’s argument,
the ALJ was not required to rely on the opinion of any one physician. In limiting Brown to a
restricted range of light work, the ALJ adequately accounted for the supportable degree of
Page 19 of 20
limitation due to Brown’s back pain. Thus, the ALJ’s RFC determination is supported by
substantial evidence in the record as a whole.
After determining Brown’s RFC, the ALJ found that she was capable of performing past
relevant work as a security guard and assistant collections supervisor, and was not, therefore
disabled. (Tr. 18.) She found in the alternative, with the assistance of a vocational expert, that
Brown could perform other jobs existing in significant numbers in the national economy. Id.
Brown does not challenge the ALJ’s step five findings.
Accordingly, Judgment will be entered separately in favor of Defendant in accordance with
UNITED STATES MAGISTRATE JUDGE
Dated this 12th day of September, 2017.
Page 20 of 20
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