Olsen v. Astrue

Filing 17

ORDER and OPINION affirming Commissioner's final decision denying benefits. Signed on 12/03/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JOHNNY D. OLSEN,
Plaintiff,
v.
MICHAEL J. ASTRUE
Commissioner of Social Security
Defendant.

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Case No. 12-4046-CV-C-ODS-SSA

ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff’s appeal of the Commissioner of Social Security’s final
decision denying his application for disability and supplemental security income
benefits. The Commissioner’s decision is affirmed.

I. BACKGROUND
Plaintiff was born September 5, 1962, and has a high school education. He
alleges he became disabled on May 1, 2008, due to a combination of diabetes,
pancreatitis, high blood pressure, and depression.
The Record reveals that in May 2008, Plaintiff was admitted to University
Hospital in Columbia, Missouri, with uncontrolled diabetes and pancreatitis. R. 225,
233.

Jonathan Collins, M.D., treated Plaintiff with insulin and antibiotics and noted

Plaintiff improved a lot by the next day.

R. 225.

Upon discharge, Plaintiff was

instructed to continue taking insulin. R. 225
In November 2008, Plaintiff saw Dr. Collins who noted Plaintiff’s history of
diabetes, alcohol abuse, and chronic pancreatitis. R. 245. Plaintiff said he had some
vision problems and he had not gotten better in controlling his diabetes. R. 245. Dr.
Collins diagnosed Plaintiff with hypertension, but did not treat Plaintiff at the time and

instead said that medication may be required in the future. R. 245. Plaintiff’s dosage of
insulin was also adjusted. R. 245.
In December 2008, Dr. Collins again commented on Plaintiff’s uncontrollable
diabetes, past history of alcohol abuse, chronic pancreatitis, and a new diagnosis of
hypertension. R. 244. Plaintiff had not taken the adjusted dosage of medication as
instructed at the previous appointment, nor had he obtained his fasting labs. R. 244.
Plaintiff’s diabetes medication was adjusted and the doctor proscribed medication for
hypertension. R. 244.
In January 2009, Dr. Collins proscribed Plaintiff with antibiotics for a tooth
abscess. R. 241. Plaintiff still had uncontrolled diabetes and uncontrolled hypertension.
R. 241. Plaintiff saw Dr. Collins again in June 2009 to follow up with his diabetes. R.
240.

Plaintiff also complained of pain in his right shoulder, after which Dr. Collins

proscribed medication. R. 240. Plaintiff had not been eating an appropriate diabetic
diet. R. 240.
In July 2009, Plaintiff followed up with Dr. Collins for his diabetes, hypertension,
and right shoulder pain. R. 238. Plaintiff reported his diabetes were under control. R.
238. Plaintiff said he was watching his diet and taking his diabetes medication. R. 238.
Dr. Collins diagnosed Plaintiff with right shoulder bursitis, hypertension, and diabetes,
and recommended a continuation of medication for the diabetes and hypertension. R.
238.
On September 18, 2009, Plaintiff was referred to Thomas Spencer, Psy. D., for a
psychological evaluation to assist in the determination of Medicaid eligibility. R. 269-74.
Plaintiff arrived 10 minutes early and drove himself to the appointment.

R. 271.

Plaintiff’s chief complaint was that he needed help with his bills and could not do much
to pay for them. R. 271. During the examination, Plaintiff said he had been emotional
lately and cried for no apparent reason. R. 271. He said he was depressed, lacked
motivation and energy to be around others, and felt hopeless, helpless, and worthless at
times.

R. 271.

Plaintiff denied the presence of panic attacks and denied feeling

overwhelmed. R. 271. Plaintiff said he was helping a friend build a deck, but could not
think during the process, saying he felt confused.

Dr. Spencer thought Plaintiff’s

description sounded more like impairment in attention and concentration.
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R. 271.

Plaintiff said his depression comes and goes but does not last more than a day at most.
R. 271.
Dr. Spencer had previously examined Plaintiff in August 2008 and diagnosed him
with adjustment disorder. R. 271. Plaintiff had no further contact with a psychiatrist or
psychologist since that time and a doctor never prescribed psychotropic medication. R.
271. At the examination, Plaintiff’s motor behavior appeared fairly normal and there
was no appearance of physical distress. R. 273. Dr. Spencer thought Plaintiff seemed
a bit anxious, but that his flow of thought was intact and organized and his insight was
intact. R. 273. Plaintiff had adjustment disorder and was depressed and anxious. R.
274.

Dr. Spencer concluded Plaintiff has a mental illness, but that it does not

necessarily interfere with his ability to engage in employment suitable for his age,
training, experience and/or education. R. 274.
On September 24, 2009, Earl Haskell, M.D., completed a medical review upon
request of a State agency, noting diagnoses of marked obesity with diabetes and
hypertension; alcoholism; and anxiety and depression. R. 255. On November 9, 2009,
another physician reported that Plaintiff has diagnoses of hypertension, obesity, right
shoulder pain, chronic pancreatitis, and a history of alcohol abuse. R. 252.
On March 23, 2010, Dr. Collins completed a medical source statement. R. 29192.

Dr. Collins noted that Plaintiff could lift and carry 50 pounds frequently and

occasionally. R. 291. He could stand and/or walk for four hours total, up to 20 minutes
at a time. R. 291. He could sit for eight hours total, for three to four hours at a time. R.
291. Plaintiff’s limitations included his ability to push or pull overhead. R. 291. Plaintiff
could never climb and could occasionally balance, stoop, kneel, crouch, and bend. R.
292. Plaintiff could finger, feel, and hear, without limit, but had limitations in his ability to
reach, handle, see, and speak, and was restricted from fumes and certain machinery.
R. 292. Dr. Collins checked a box on the form to indicate that reclining for up to 30
minutes, one to three times a day, as well as and propping up his legs to a height of two
to three feet, one to three times a day while sitting, “would be considered necessary to
help [Plaintiff] in regard to control of existing pain or fatigue.” R. 293.
On April 27, 2010, Dr. Collins noted Plaintiff’s history of diabetes and depression.
R. 295. Plaintiff indicated he felt “much better” and got more sleep after starting anti3

depression medication. R. 295. Dr. Collins instructed Plaintiff to continue his current
dosing of diabetes medication. R. 297. Dr. Collins said Plaintiff was doing well with his
depression, but increased his dosage of anti-depression medication. R. 297.
On October 9, 2010, Plaintiff went to the emergency room to have an abscess on
his groin drained.

R. 304-05.

Doctors noted Plaintiff’s history of diabetes and

pancreatitis. R. 304. It was also reported that Plaintiff’s diabetes was poorly controlled
and Plaintiff had not been taking his medications because of his lack of finances. R.
310-11. Sofia Syed, M.D., recommended that Plaintiff establish care in the family health
center for better diabetic control and provided recommendations on how Plaintiff might
get free insulin and test strips. R. 312.
During the administrative hearing on December 3, 2010, Plaintiff testified he lives
with a former girlfriend in her home. R. 41. The last time he worked was in 2002 doing
some tree work and kitchen work.
mechanical work, and cooking.

R. 42.

R. 42.

Before that, he did some carpentry,

Plaintiff testified he takes medication for

diabetes, high blood pressure, and mental stress. R. 44. Plaintiff testified he could lift
about 50 pounds, walk an eighth of a mile, stand for 30 minutes, and sit for two hours.
R. 44-45. On a typical day, Plaintiff feeds himself, takes his insulin, and finds something
to do, such as cut wood or make children’s toys. R. 46. In his spare time he watches
television and walks around. R. 48. Plaintiff mows the grass every two weeks for about
fifteen minutes. R. 47. Plaintiff cleans around the house and takes out the trash. R.
49.
Plaintiff testified that the main reason he was unable to work was because of his
recurrent vomiting episodes, which would cause him to hide and make several trips to
the bathroom. R. 50. Because of his diabetes, Plaintiff reported he has no energy and
has to lie down during the day for about an hour by lunchtime, and gets tired again by
five or six o’clock. R. 52. Plaintiff’s depression causes him to cry for an hour or more
weekly.

R. 53.

Plaintiff also complained of insomnia, headaches, and right arm

problems. R. 53, 55.
At step one of the five-step sequential process, the administrative law judge
(“ALJ”) determined Plaintiff had not engaged in substantial gainful activity since August
25, 2009, the application date. At step two, the ALJ found Plaintiff has the following
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severe impairments: diabetes, hypertension, and depression. At step three, the ALJ
determined Plaintiff’s ailments do not meet or equal a listed impairment. For steps four
and five, the ALJ concluded that Plaintiff has the residual functional capacity (“RFC”) as
follows:
[T]he claimant has the residual functional capacity to perform light work (light
work is defined as lifting 20 pounds occasionally, 10 pounds infrequently, and
standing or walking up to 6 hours in an 8 hour work day) except the claimant
must sit and stand at will, and he can walk 4 out of 8 hours for a full eight hour
day. The claimant’s ability to push, pull, and engage in gross/fine movements is
unlimited, except he can occasionally perform overhead lifting, bilaterally. He
can occasionally climb stairs, but cannot climb ladders, ropes, scaffolds, or run.
The claimant can occasionally bend, stop, crawl, balance, twist, and squat. In
addition, the claimant can understand simple instructions, and can concentrate
and perform simple tasks. Furthermore, the claimant can get along with others;
and, respond and adapt to workplace changes and supervision.
Next, the ALJ found Plaintiff is unable to perform any past relevant work, but
considering the claimant’s age, education, work experience, and RFC, there are jobs
that exist in significant numbers in the national economy that Plaintiff can perform.
Finally, the ALJ concluded Plaintiff is not disabled.

II. STANDARD
“[R]eview of the Secretary’s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary’s conclusion. [The Court] will not reverse a decision simply because some
evidence may support the opposite conclusion.” Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision.

Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.

Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means “more than a
mere scintilla” of evidence; rather, it is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
Cir. 2010).

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III. DISCUSSION
Plaintiff argues the ALJ erred in assessing Plaintiff’s RFC by rejecting a portion of
an opinion by Plaintiff’s treating physician, Dr. Collins. Specifically, Plaintiff argues the
RFC is deficient because it fails to include Plaintiff’s need to recline and elevate his feet.
The Court disagrees.
The ALJ has the responsibility to assess a claimant’s RFC based on all the
relevant evidence. Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000). A treating
physician’s opinion will be given controlling weight if it is not inconsistent with the other
substantial evidence in the record and is well-supported by medically acceptable clinical
and laboratory diagnostic techniques. Woods v. Astrue, 780 F.Supp.2d 904, 912 (E.D.
Mo. 2011) (citing Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998)). “While a
treating physician’s opinion is usually entitled to great weight, the Eighth Circuit has
cautioned that it ‘does not automatically control, since the record must be evaluated as
a whole.’”

Id. (quoting Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir. 1995)).

Accordingly, a treating physician’s opinion can be discounted where other medical
assessments are supported by better or more thorough medical evidence, or where a
treating physician renders inconsistent opinions that undermine the credibility of such
opinions. Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000). The ALJ must give
“good reasons” for the particular weight given to a treating physician’s evaluation. 20
C.F.R. § 404.1527(d)(2).
In this case, Dr. Collins’ medical source statement noted that Plaintiff could carry
50 pounds frequently and occasionally. R. 291. Plaintiff could stand and/or walk for 4
hours total, up to 20 minutes at a time, and could sit for eight hours total, for 3-4 hours
at a time. R. 291. The ALJ’s RFC determination includes physical limitations that are
greater than Dr. Collins’ opinion on Plaintiff’s functional physical capacity. R. 31, 33.
For example, the ALJ determined Plaintiff could lift 20 pounds occasionally and 10
pounds infrequently, must sit and stand at will, and could walk 4 out of 8 hours for a full
eight hour day. R. 31. The ALJ found most of Dr. Collins’ opinion to be persuasive and
supported by the record as a whole and incorporated some of the limitations within the
established RFC. R. 31, 33. However, the ALJ only gave Dr. Collins’ opinion some

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weight because he found that a few limitations—including Plaintiff’s need to elevate his
feet, and the upper extremity handling, seeing, and speaking limitations—unsupported
by the objective medical evidence. R. 33.
The Court finds that the ALJ did not err in discounting a portion of Dr. Collins’
opinion from the medical source statement and giving Dr. Collins’ opinion some weight.
First, the ALJ accepted a majority of Dr. Collins’ opinion. Second, the only instance in
the Record that noted Plaintiff’s need to recline and elevate his feet to reduce pain was
in the single medical source statement where Dr. Collins checked a box on a predrafted questionnaire form. R. 293. Dr. Collins never ordered or even suggested to
Plaintiff that he recline and elevate his feet. Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir.
2001) (discrediting treating physician’s opinion of limitations where “[n]one of these
restrictions appear elsewhere in [the treating physician’s] treatment records.”). Because
a portion of Dr. Collins’ opinion is not supported by the medical evidence in the Record,
the ALJ properly gave Dr. Collins’ opinion some weight.
Plaintiff also criticizes the ALJ’s hypothetical question posed to the vocational
expert (“VE”) because it failed to include the need to lie down and elevate the feet
during the day. This argument is without merit. “The ALJ’s hypothetical question to the
vocational expert needs to include only those impairments that the ALJ finds are
substantially supported by the record as a whole.” Lacrois v. Barnhart, 465 F.3d 881,
889 (8th Cir. 2006). The hypothetical question posed to the VE included all of Plaintiff’s
limitations found to exist by the ALJ and set forth in the ALJ’s description of Plaintiff’s
RFC. Accordingly, the ALJ’s RFC determination is supported by substantial evidence.

IV. CONCLUSION

There is substantial evidence in the Record to support the ALJ’s decision. The
Commissioner’s final decision is affirmed.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: December 3, 2012
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