Heintz v. Colvin
MEMORANDUM AND ORDER re: 21 SOCIAL SECURITY CROSS BRIEF re 16 SOCIAL SECURITY BRIEF re 14 Answer to Complaint, 1 Complaint, 15 Transcript of certified administrative hearing, filed by Defendant Nancy A. Berryhill, 16 SOCIAL SECURI TY BRIEF re 14 Answer to Complaint, 1 Complaint, 15 Transcript of certified administrative hearing, filed by Plaintiff Vincent John Heintz. Judgment will be entered separately in favor of the Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/8/18. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
VINCENT JOHN HEINTZ,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
) Case No. 4:16 CV 1894 ACL
Plaintiff Vincent John Heintz brings this action pursuant to 42 U.S.C. ' 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of his applications
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and
Supplemental Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Heintz’s severe physical and
mental impairments, he was not disabled as he had the residual functional capacity (“RFC”) to
perform jobs that existed 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.
I. Procedural History
Heintz protectively filed applications for DIB and SSI on December 4, 2015, claiming that
he became unable to work on September 1, 2015, because of a right knee replacement, left knee
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pain, back problems, neck problems, and depression. (Tr. 79.) Heintz was 43 years of age on his
alleged onset of disability date. Id. His claims were denied initially. (Tr. 99-104.) Following
an administrative hearing, Heintz’s claims were denied in a written opinion by an ALJ, dated
September 21, 2016. (Tr. 16-25.) Heintz 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
October 4, 2016. (Tr. 12, 1-5.) 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, Heintz first argues that he “meets or medically equals the Listing at '
1.03 of 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Doc. 16 at 11.) He next claims that the
ALJ “did not fulfill her duty to develop the medical record, which duty exists whether or not a
claimant is represented.” Id. at 13. Finally, Heintz argues that the ALJ “failed to analyze
plaintiff’s credibility consistent with applicable law and SSA’s own rules and regulations.” Id. at
II. The ALJ=s Determination
The ALJ first noted that Heintz met the insured status requirements of the Social Security
Act through December 31, 2017, and has not engaged in substantial gainful activity since
September 1, 2015, his alleged onset date. (Tr. 18.)
In addition, the ALJ concluded that Heintz had the following severe impairments:
status-post right total knee replacement, bilateral osteoarthritis of the knees, sleep apnea, obesity,
and hypertension with edema. (Tr. 18.) The ALJ found that Heintz did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
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As to Heintz’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 sedentary work as defined in 20CFR 404.1567(a) and
416.967(a) except: lift, carry, push and pull 10 pounds frequently
and less than 10 pounds frequently; sit a total of six hours in an
eight-hour workday; stand and walk two hours total in an eight-hour
workday; and never operate foot controls bilaterally. The claimant
would need to elevate his legs up to 18 inches while sitting and
require a stick, cane or other assistive device for ambulation while at
his workstation. The claimant can no more than occasionally climb
ramps and stairs; never climb ropes, ladders and scaffolds; never
kneel or crawl; no more than occasionally stoop or crouch; and
never work at unprotected heights or with or around hazardous
The ALJ found that Heintz’s allegations regarding the extent of his limitations were not
entirely credible. (Tr. 22.) In determining Heintz’s RFC, the ALJ indicated that she was
assigning “great weight” to the opinions of treating physician Sunny Desai, M.D. (Tr. 21.)
The ALJ further found that Heintz was unable to perform past relevant work, but was
capable of performing other jobs existing in the national economy, such as addresser, document
preparer, and press clipping cutter/paster. (Tr. 24-25.) The ALJ therefore concluded that Heintz
was not under a disability, as defined in the Social Security Act, from September 1, 2015 through
the date of the decision. (Tr. 25.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on December 4, 2015, the
claimant is not disabled under sections 216(i) and 223(d) of the
Social Security Act.
Based on the application for supplemental security income
protectively filed on December 4, 2015, the claimant is not disabled
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under section 1614(a)(3)(A) of the Social Security Act.
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
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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 (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
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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.
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
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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 “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
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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).
As previously stated, Heintz challenges the ALJ’s determination that Heintz did not meet
or equal a Listing. He also argues that the medical record required further development, and that
the ALJ erred in discrediting his subjective allegations. The undersigned will discuss Heintz’s
claims in turn.
Heintz argues that he met or medically equaled Listing 1.03, for “reconstructive surgery or
surgical arthrodesis of a major weight-bearing joint.” 20 C.F.R. Pt. 404, Subpt. P, Appx. 1, §
1.03. He contends that the ALJ erred in failing to consider this listing.
The ALJ found that Heintz did not have an impairment or combination of impairments that
met or medically equaled the severity of a listed impairment. (Doc. 18.) She stated that she had
considered Listings 1.02 (major dysfunction of a joint) and 3.10 (sleep-related breathing
disorders). Id. The ALJ further noted that she had considered the effects of Heintz’s obesity,
although obesity was not mentioned in the listings. (Tr. 19.) She stated that “[o]bjective medical
findings establish that the claimant can effectively ambulate as set forth under 1.00B2b.” Id.
The ALJ’s decision that Heintz did not have an impairment or combination of impairments
that met or medically equaled a listed impairment is supported by substantial evidence. The
claimant bears the burden of proving his impairment meets or equals the criteria for a specific
listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “For a claimant to show that
his impairment matches a listing, it must meet all of the specified medical criteria.” Brown ex rel.
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Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004) (internal quotations and citation
omitted). Where the claimant suffers from an unlisted impairment, the ALJ must compare the
claimant’s impairment with an analogous listed impairment. 20 C.F.R. §§ 404.1526, 416.926.
Furthermore, the question is whether the ALJ “consider[ed] evidence of a listed impairment and
concluded that there was no showing on th[e] record that the claimant’s impairments ... m[et] or
are equivalent to any of the listed impairments.” Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir.
2006) (internal quotations omitted). While it is preferable for an ALJ to address a specific listing,
the failure to do so is not reversible error if the record supports the overall conclusion. See Pepper
ex rel. Gardner v. Barnhart, 342 F.3d, 853, 855 (8th Cir. 2004), Dunahoo v. Apfel, 241 F.3d 1033,
1037 (8th Cir. 2001); see also Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011) (“There is no
error when an ALJ fails to explain why an impairment does not equal one of the listed impairments
as long as the overall conclusion is supported by the record.”).
To meet Listing 1.03, Heintz has to show he had “reconstructive surgery or surgical
arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in
1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12
months of onset.” 20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 1.03. An “[i]nability to ambulate
effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual’s ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity functioning ... to
permit independent ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.” Id. § 1.00(2)(b)(1).
The ALJ’s decision that Heintz did not have an impairment or combination of impairments
that met or equaled a listed impairment is supported by substantial evidence. Although the ALJ
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did not specifically cite Listing 1.03, she did make the finding that “objective medical findings
establish that the claimant can effectively ambulate as set forth under 1.00B2b.” (Tr. 19.) Later
in her opinion, the ALJ discussed the objective medical evidence following Heintz’s knee surgery.
A summary of this evidence is provided below.
The ALJ acknowledged that Heintz underwent a right total knee replacement without
complications on November 17, 2015, performed by Robert Barrack, M.D. (Tr. 20, 272.) On
December 14, 2015, Dr. Barrack noted that the incision was well-healed; he had no limp; his range
of motion was 5 to 95 degrees, with normal alignment and stability; he used a cane; and his
neurovascular status was intact. (Tr. 270.) Heintz presented to treating physician Sunny Desai,
M.D., the following day, at which time Dr. Desai stated he was “progressing well” following
surgery. (Tr. 312.) On physical exam, Dr. Desai noted 1+ right leg edema, and trace ankle
edema on the left. (Tr. 312.) On January 25, 2016, Dr. Barrack found that Heintz had a “mild
limp;” range of motion of 0 to 120 degrees, with “excellent” alignment and stability; and he used a
cane. (Tr. 401.) He noted that, although Heintz complained of his leg giving way, he was
“completely stable to exam in extension, midflexion and full flexion.” Id. Dr. Barrack
recommended that Heintz continue routine outpatient physical therapy. Id. On March 21, 2016,
Dr. Desai again noted that Heintz was “progressing well.” (Tr. 414.)
Heintz presented to Dr. Desai on May 31, 2016, with complaints of pain in his right ankle,
left elbow, wrist, and shoulder, after falling down some stairs. (Tr. 21, 409.) X-rays of the right
ankle revealed soft tissue swelling without visible fractures. (Tr. 410.) Dr. Desai diagnosed
Heintz with right ankle sprain, and recommended use of ice and anti-inflammatories when
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Heintz saw Dr. Barrack for follow-up on July 25, 2016, at which time he complained of
swelling in both legs below the knee and muscle spasms in the right thigh muscle. (Tr. 21, 434.)
Upon physical examination, the incision was well-healed with no redness, erythema, or drainage;
he had good arc of motion, 0-110 degrees; no instability with stress testing; intact neurovascular
status; and pitting edema up to and above the knee. Id. Radiographs revealed “excellent
component alignment and fixation with no interval change.” Id. Dr. Barrack diagnosed Heintz
with “good result following total knee replacement.” Id. He stated that Heintz’s symptoms
seemed to be related to the pitting edema, and that he was seeing a cardiologist for management of
the fluid retention and a pain management physician for the persistent pain and spasms. Id. Dr.
Barrack stated that there was no further treatment indicated for the knee replacement, noting that it
“appears excellent on x-ray and has excellent alignment and fixation, and the pain is really not in
the vicinity of the knee joint itself.” Id. He recommended that Heintz return every two to three
years for routine follow-up of the knee replacement. Id.
On August 3, 2016, Heintz saw Farhaan A. Ahmad, M.D., at St. Anthony’s Heart Specialty
Associates, for evaluation of increasing dyspnea and bilateral lower extremity edema. (Tr. 21,
431.) Dr. Farhaan noted that Heintz’s medical history was significant for obesity, obstructive
sleep apnea with noncompliance with CPAP therapy, and hypertension. Id. Heintz’s lower
extremity and dyspnea symptoms had been progressive with his multiple knee surgeries and
increasing weight. Id. He was 5 feet 8 inches tall, and weighed 300 pounds. Id. Heintz had
been dyspneic with minimal activity and noted associated chest tightness. Id. His lower
extremity edema symptoms worsened at the end of the day. Id. As a result of his edema and
knee osteoarthritis, Heintz had had been less physically active and had gained a significant amount
of weight. Id. Dr. Ahmad noted that a venous study conducted the previous year did not reveal
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venous ablation, but recommended repeating the study. (Tr. 432.) Dr. Ahmad found that
Heintz’s dyspnea was likely related to “combination of obesity and chronic deconditioning,”
although he recommended further evaluation with an echocardiogram. Id. He advised Heintz
regarding the importance of compliance with CPAP therapy and weight loss. Id. Heintz
underwent a second venous reflux study on August 15, 2016, which showed no evidence of deep
or superficial thrombosis in the bilateral lower extremities. (Tr. 21, 449.)
The ALJ noted that, in a medical source statement dated August 23, 2016, Dr. Desai
indicated that Heintz “has hypertension and leg edema and should keep his legs elevated when he
is sitting or resting.” (Tr. 21, 456.)
Heintz argues that the ALJ minimized his complaints to treating sources of chronic leg and
back pain, and knee and leg swelling. The ALJ, however, recounted Heintz’s complaints of pain
and swelling in summarizing the medical evidence discussed above. There is no evidence that
Heintz was unable to walk without the use of a walker, two crutches, or two canes. Notably, Dr.
Barrack found that Heintz had no limp only approximately one month following surgery, and a
“mild” limp the next month. (Tr. 270, 401.) Dr. Barrack also noted Heintz’s well-healed
incision, good range of motion, and excellent alignment and fixation. Id. Despite Heintz’s
subsequent symptoms of pain and swelling, the record contains no evidence that Heintz was
unable to effectively ambulate as required by section 1.00(B)(2)(b) of the regulation. As such,
Heintz did not meet his burden of establishing he met Listing 1.03.
Heintz next argues that, even if he did not meet the requirements of Listing 1.03, he
medically equaled the Listing due to his obesity. “To establish equivalency, a claimant ‘must
present medical findings equal in severity to all the criteria for the one most similarly listed
impairment.’” Igo v. Colvin, 839 F.3d 724, 730 (8th Cir. 2016) (quoting Sullivan v. Zebley, 493
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U.S. 521, 531 (1990), superseded by statute on other grounds as stated in Colon v. Apfel, 133 F.
Supp. 2d 330, 338-39 (S.D. N.Y. 2001)).
The ALJ found that Heintz’s obesity was a severe impairment, and specifically considered
its effects in determining medical equivalence. (Tr. 19.) The ALJ found that Heintz’s obesity
was not equivalent to a Listing because Heintz can effectively ambulate. As previously
discussed, the ALJ’s determination that the objective medical evidence did not establish Heintz’s
inability to ambulate effectively is supported by substantial evidence.
Thus, the ALJ did not err in finding Heintz does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments.
Credibility and RFC
Heintz argues that the ALJ erred in assessing the credibility of Heintz’s subjective
complaints of pain and limitations.1 He further argues that the ALJ did not fulfill her duty to
develop the record as to Heintz’s RFC.
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 his symptoms, the ALJ must
consider all of the evidence, including objective medical evidence, and evidence relating to the
Heintz only challenges the ALJ’s findings with regard to his physical impairments. The Court
notes that Heintz also alleged depression as a disabling impairment. The ALJ found that Heintz’s
depression was non-severe. Because Heintz does not challenge this determination, the Court will
limit its discussion to Heintz’s physical impairments.
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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. §
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, 241 F.3d at 1038 (“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 Heintz’s credibility based upon the lack of supporting
objective medical evidence, noncompliance with treatment recommendations, and other
inconsistencies in the record.
The ALJ first noted that, on February 20, 2015, less than seven months before the alleged
onset of disability date, Heintz requested a letter from Dr. Desai to give to a prospective employer
stating that he could use his legs without restrictions and lift 100 pounds. (Tr. 22, 335.) Dr.
Desai authored the requested letter. (Tr. 335.) The ALJ acknowledged that Heintz’s physical
condition deteriorated after this time, yet nonetheless found the evidence inconsistent with
Heintz’s allegations of complete disability beginning in September of 2015. (Tr. 22.)
The ALJ discussed Heintz’s testimony that he spends most of his day lying down and
watching television, is incapable of standing to rinse off a dish, and that it would take him 45
minutes to put on his socks. (Tr. 22, 45, 54-58.) She stated that there was no support in the
record of limitations to this degree. (Tr. 22.) An ALJ may consider the lack of objective medical
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evidence supporting a plaintiff’s subjective complaints as one factor in assessing credibility.
Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004).
The ALJ next noted that no examining or treating physician expressed an opinion that
Heintz was precluded from all work activity. Rather, in his August 2016 medical source
statement, Dr. Desai stated only that Heintz should keep his legs elevated when sitting or resting.
(Tr. 22, ) Dr. Barrack found that Heintz required no further treatment for his knee in July 2016.
(Tr. 434.) The lack of significant limitations set out by treating and examining physicians is
relevant to a determination of disability. See Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005).
With respect to Heintz’s sleep apnea, the ALJ noted that Heintz has been non-compliant
with his CPAP therapy, citing Dr. Ahmad’s August 2016 treatment notes. (Tr. 22, 431.) She
stated that this noncompliance was inconsistent with Heintz’s complaints of excessive daytime
sleepiness secondary to an inability to sleep at night. The ALJ properly found this evidence
detracted from Heintz’s credibility. See Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006)
(noncompliance with a physician’s directions or prescribed treatment is a valid reason to discredit
a claimant’s subjective allegations); 20 C.F.R. § 404.1530(a-b) (failure to follow a prescribed
course of treatment without good reason precludes a finding of disability).
The ALJ further found that there was nothing in the medical evidence of record to support
that Heintz complained to his treating physicians that he was experiencing severe functional
limitations due to his sleep apnea. (Tr. 22-23.) The ALJ pointed out that Heintz testified that he
lost his job on August 28, 2015, because he was falling asleep at work. (Tr. 23, 38.) The ALJ
accurately stated that the absence of evidence in the medical records of complaints of falling asleep
during the day detracted from the credibility of his allegation of disability on this basis.
In summary, the ALJ gave good reasons for discounting Heintz’s subjective complaints.
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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).
The ALJ then determined Heintz’s RFC. She found that Heintz was capable of
performing sedentary work with the following additional limitations:
lift, carry, push and pull 10 pounds frequently and less than 10 pounds frequently;
sit a total of six hours in an eight-hour workday; stand and walk two hours total in
an eight-hour workday; and never operate foot controls bilaterally. The claimant
would need to elevate his legs up to 18 inches while sitting and require a stick, cane
or other assistive device for ambulation while at his workstation. The claimant
can no more than occasionally climb ramps and stairs; never climb ropes, ladders
and scaffolds; never kneel or crawl; no more than occasionally stoop or crouch; and
never work at unprotected heights or with or around hazardous machinery.
RFC is what a claimant can do despite his limitations, and it must be determined on the
basis of all relevant evidence, including medical records, physician’s opinions, and claimant’s
description of his limitations. Dunahoo, 241 F.3d at 1039. Although the ALJ bears the primary
responsibility for assessing a claimant’s RFC based on all relevant evidence, a claimant’s RFC is a
medical question. See Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d
448, 451 (8th Cir. 2000). Therefore, an ALJ is required to consider at least some supporting
evidence from a medical professional. See Lauer, 245 F.3d at 704 (some medical evidence must
support the determination of the claimant’s RFC); Casey v. Astrue, 503 F.3d 687, 697 (8th Cir.
2007) (the RFC is ultimately a medical question that must find at least some support in the medical
evidence in the record). An RFC determination made by an ALJ will be upheld if it is supported
by substantial evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Heintz argues that the ALJ erred in failing to further develop the record by ordering a
consultative examination or seeking clarification from Dr. Desai. He contends that the ALJ
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instead “played doctor” and drew inferences from the medical records, resulting in a RFC that is
unsupported by substantial evidence.
“‘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).
The ALJ is only required to order further medical examinations where a “critical issue is
undeveloped” and the existing medical record does not provide “sufficient medical evidence to
determine whether the claimant is disabled.” Martise, 641 F.3d at 926-27. In this case, Heintz
has not established that such an issue is underdeveloped.
In determining Heintz’s RFC, the ALJ indicated that she was assigning “great weight” to
the opinion of Dr. Desai that Heintz has hypertension and leg edema and should keep his legs
elevated when sitting or resting. (Tr. 21.) The ALJ noted that Dr. Desai did not state that Heintz
was incapable of working, nor did he impose any other limitations. Id. She explained that Dr.
Desai’s opinion was entitled to great weight because it was provided by a doctor who has treated
Heintz over a significant period of time and the opinion was consistent with the record. Id. With
regard to Heintz’s knee impairment, the ALJ pointed out that Dr. Barrack’s July 2016 records
reveal Heintz had good range of motion, no instability, excellent alignment and fixation on x-ray,
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and that he did not require further treatment for his knee replacement. (Tr. 22.) The ALJ stated
that she recognized that Heintz experienced lower extremity edema, “[h]owever, the necessity for
the claimant to limit walking and standing and the need to elevate his legs while sitting have been
considered.” Id. She concluded that these functional limitations “have been taken into account
in the above sedentary residual functional capacity assessment with the further requirement of
elevating his legs while sitting presented to the vocational expert who still identified jobs the
claimant is able to perform.” Id.
The undersigned finds that substantial evidence on the record as a whole supports the
ALJ’s RFC decision. See Buford v. Colvin, 824 F.3d 793, 796-97 (8th Cir. 2016) (ALJ did not err
in failing to obtain an opinion from a treating or consultative doctor where RFC was based on state
agency medical consultants’ assessments and claimant’s medical records that showed examination
and treatment by various medical providers over a two-year period). The ALJ’s determination is
supported by the opinion of Dr. Desai, the treatment notes of Dr. Barrack, and the remaining
medical evidence of record. The undersigned further notes that State agency physician Donna
McCall, D.O., found that Heintz was capable of lifting 20 pounds occasionally and 10 pounds
frequently; and could stand or walk 6 hours in an 8-hour workday. (Tr. 84-85.) The ALJ’s RFC
determination was significantly more restrictive in that she limited Heintz to lifting no more than
ten pounds, standing or walking no more than two hours; and imposed the additional limitations of
elevating his legs up to 18 inches while sitting and requiring a stick, cane or other assistive device
for ambulation while at his workstation.
In sum, the ALJ assessed Heintz’s physical RFC based on the treatment notes of Heintz’s
physicians, the objective imaging, and Heintz’s testimony. The ALJ performed a proper
credibility determination and found Heintz’s allegations of total disability were not entirely
Page 19 of 20
credible. Heintz did not meet his burden to establish a more restrictive RFC. The record, when
considered as a whole, supports a conclusion that Heintz is capable of performing a limited range
of sedentary work. The fact that the record might also support a contrary conclusion is not a basis
for reversing the ALJ’s decision in this case. See Reece v. Colvin, 834 F.3d 904, 908 (8th Cir.
2016); McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
The hypothetical question the ALJ posed to the vocational expert (VE) was based on the
RFC formulated by the ALJ, which accounted for all of Heintz’s credible limitations.
Consequently, the hypothetical question posed to the VE was proper. See Martise, 641 F.3d at
927 (“Based on our previous conclusion ... that ‘the ALJ’s findings of [the claimant’s] RFC are
supported by substantial evidence,’ we hold that ‘[t]he hypothetical question was therefore proper,
and the VE’s answer constituted substantial evidence supporting the Commissioner’s denial of
benefits.’”) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)).
Accordingly, Judgment will be entered separately in favor of the Defendant in accordance
with this Memorandum.
/s/ Abbie Crites-Leoni
UNITED STATES MAGISTRATE JUDGE
Dated this 8th day of March, 2018.
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