McNeal v. Astrue
Filing
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ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS entered by Judge Ortrie Smith. (Kanies, Renea)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TONY MCNEAL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 12-4090-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 March 25, 1974, and has completed his GED. He has work
experience as a construction worker, laborer making steel wheels, and laborer making
toolboxes. R. 72. Plaintiff alleges he became disabled on December 14, 2008, due to
HIV, as well as pain in his lower back, right shoulder, and knees.
On January 24, 2008, Plaintiff saw Dr. John C. Wendt and reported low back
pain due to a work-related injury. R. 231. Dr. Wendt placed Plaintiff on bed rest with a
heating pad and prescribed pain medication. R. 231. Four days later, Plaintiff saw Dr.
Wendt for a follow-up and was diagnosed with a low back strain. R. 231. Dr. Wendt
referred Plaintiff to physical therapy and released him to light duty work with no lifting
greater than 25 pounds and no bending at the waist or overhead work. R. 231.
On April 15, 2008, Plaintiff went to the University of Missouri Hospital and Clinic
(“University Hospital”) to establish care for his HIV and underwent viral load testing. R.
256-57, 263, 265. The hospital records noted that Plaintiff was first diagnosed with HIV
in 1999. R. 256. Plaintiff returned to the University Hospital three more times in 2008 to
follow up on his HIV. R. 233-34, 246, 304. Plaintiff was asymptomatic at each visit. R.
234, 247, 305.
On May 15, 2009, Plaintiff presented at the Bothwell Regional Health Center
reporting dizziness, blurred vision, and head pressure. R. 272. Plaintiff was diagnosed
with tick borne illness and prescribed medications. R. 274-75.
On June 2, 2009, and August 4, 2009, Plaintiff returned to the University Hospital
for a HIV follow-up. R. 299, 318-21. Plaintiff began highly active antiretroviral therapy
(“HAART therapy”) and tolerated the medicine reasonably well. R. 301, 320.
On August 13, 2009, Plaintiff presented for treatment of his low back pain at the
Columbia Orthopaedic Group with Dr. Matt Thornburg. R. 340-41. A MRI on Plaintiff’s
lumbar spine revealed minimal degenerative disk disease, disk space narrowing, and
central disk osteophyte complex. R. 340, 332. Dr. Thornburg recommended therapy
and an epidural steroid injection.
R. 339.
Plaintiff received epidural injections on
September 14, 2009, and October 7, 2009. R. 342, 345-46.
On October 21, 2009, Dr. Ruth Stoecker with Disability Determination Services
conducted a case analysis and opined that there was limitation to physical functioning
demonstrated in the medical record. R. 330.
On November 19, 2009, saw Dr. John Miles at the Columbia Orthopedic Group
and reported low back pain with radiation in the right lower extremity down to the knee.
R. 335-36. Dr. Miles placed Plaintiff on a 25 pound weight restriction with no repetitive
bending, twisting, or stooping and also restricted Plaintiff from prolonged sitting or
standing. R. 336. Plaintiff again saw Dr. Miles on December 1, 2009, and still reported
pain. R. 334. Dr. Miles noted “[w]e’ll place him on no permanent work restrictions,” but
noted that Plaintiff had a 2% permanent partial disability. R. 334.
On April 30, 2010, Plaintiff saw Dr. Ravinder Arora for a back and leg pain
evaluation. R. 356. Plaintiff reported that his epidural injections were not helping the
pain and that he experienced radiating symptoms to lower extremities. R. 356. MRI
results showed that Plaintiff’s pelvis was normal. R. 349. An EMG revealed bilateral
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L4/5 radiculopathy. R. 352-55. Dr. Arora recommended physical therapy of the low
back including heat, ultrasound, and massage daily for two weeks. R. 352.
On June 2, 2010, Plaintiff saw Dr. Arora again for treatment of his back and leg
discomfort. R. 351. Dr. Arora referred Plaintiff two physical therapy programs and
prescribed him with medications and an epidural injection. R. 351. Plaintiff underwent
the epidural injections on June 21 and July 12, both in 2010. R. 370-73.
On July 13, 2010, the Division of Family Services referred Plaintiff to Marsha
Kempf, a nurse practitioner who works under the direction of a psychiatrist, Robert
Frick, M.D., for a psychiatric evaluation. R. 43, 359-363. Plaintiff was examined solely
by Ms. Kempf and was never was examined by Dr. Frick. R. 69-70. At Axis I, Plaintiff
was diagnosed with severe post traumatic stress disorder (“PTSD”) and ADHD. R. 361.
At Axis II, Plaintiff was diagnosed with a personality disorder, second to PTSD. R. 361.
It was recommended that Plaintiff receive long-term psychiatric care, but Plaintiff was
not prescribed any medication. R. 70, 361. Ms. Kempf endorsed that Plaintiff had a
mental disability, which prevented him from engaging in employment or gainful activity
for which his age, training, experience, or education would fit him. R. 363.
An administrative hearing was held on August 19, 2010. R. 35. Initially, Plaintiff
testified that he had taken medication for his HIV since he was diagnosed in 1999. R.
39-40. Then, Plaintiff testified he had been asymptomatic and conceded that he was
not prescribed HIV medication until June 2009. R. 41. Plaintiff denied ever being
hospitalized overnight in the last five years. R. 42. Plaintiff testified that his lower back
pain began in January 2008 after a work-related injury. R. 44. Plaintiff said he never
received physical therapy for his back pain. R. 45-46. He takes pain medication for his
back and has received epidural injections. R. 45-46. Plaintiff testified that he never
sought mental health treatment until July of 2010 when he was examined by Ms. Kempf,
a nurse practitioner. R. 43, 69. Plaintiff testified that Ms. Kempf did not suggest that
Plaintiff take any mental medication and that he was never evaluated by Dr. Frick. R.
70.
With regard to Plaintiff’s functional limitations, he can sit and stand for 10-20
minutes at a time, walk approximately 100 feet, and lift 15-20 pounds at a time. R. 46.
Plaintiff needs periods between alternating between sitting and standing. R. 67. Plaintiff
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lives alone, watches television, builds model car, visits with his son, and does chores
around his parents’ house. R. 36, 47, 49-50.
At the conclusion of claimant’s testimony, the administrative law judge (“ALJ”)
informed Plaintiff’s counsel that the record would be held open for thirty days after the
hearing. R. 72. The Record before this Court contains medical records during this thirty
day time period, as well as records after the administrative record was closed. While
the record was still open, Plaintiff went to the University Hospital on September 9, 2010,
for a follow-up and reported fatigue, low energy, frequent urination, sleeping less, some
intermittent palpitations, and hallucinations. R. 408-09. Dr. Zeimet noted Plaintiff’s HIV
medication caused the hallucinations and switched him to a different medication. R.
410. Dr. Zeimet also noted atypical chest pain and considered referring Plaintiff to
cardiology if it continued. R. 411.
On September 20, 2010, Plaintiff presented at the University Hospital reporting
painful palpitations, which occurred after he had an argument with his brother. R. 403.
Dr. Zeiment reviewed an ECG test and ordered that Plaintiff undergo a stress
echocardiogram.
R. 406.
Dr. Zeimet assessed that Plaintiff had palpitations with
normal TSH and atypical chest pain with the following risk factors: hypertension,
hyperlipidemia, tobacco use, and his gender. R. 406.
After the administrative record was closed, the ALJ issued his decision on
September 21, 2010. R 10-23. At step one of the five-step sequential process, the ALJ
determined Plaintiff had not engaged in substantial gainful activity since December 14,
2008. R. 12. At step two, the ALJ found Plaintiff had the following severe impairments:
HIV, musculoskeletal (back) pain, hypertension, and post-traumatic stress disorder
(“PTSD”). R. 12. At step three, the ALJ determined Plaintiff did not have an impairment
or combination of impairments that meets or medically equals a listed impairment. R.
13. At steps four and five, the ALJ concluded that Plaintiff had the residual functional
capacity (“RFC”) to:
[P]erform light work as defined in 20 CFR 404.1567(b) (e.g. five days a week job,
8 hours per day, day after day, week after week, month after month, with a ½
hour lunch break and a ¼ hour break in the morning and in the afternoon) with an
ability to lift and carry 20 pounds occasionally and 10 pounds frequently, walk for
4 of eight hours in a full eight hour day and requires a sit/stand option at will. His
ability to push/pull and fine/gross dexterity is unlimited. He is able to occasionally
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climb stairs, but is precluded from ladders, ropes, scaffolds, or running. He can
occasionally bend, stoop, crouch, crawl, balance, twist, and squat. He requires
limited exposure to heights, dangerous machinery, and uneven surfaces. He is
able to get along with others; understand simple instructions; concentrate and
perform simple tasks; and respond and adapt to workplace changes and
supervision, but in a limited public/employee contact setting.
R. 16. Next, the ALJ found, based on the vocational expert’s testimony, that Plaintiff
was unable to perform any past relevant work, but considering his age, education, work
experience, and RFC, there were jobs that exist in significant numbers in the national
economy that Plaintiff could perform. R. 21-22. Finally, the ALJ concluded Plaintiff was
not disabled. R. 23.
After the ALJ issued his decision, Plaintiff again presented to the University
Hospital on October 28, 2010, for an assessment of his HIV and chronic low back pain
with Dr. Zeimet. R. 385-88. In a medical source statement completed the same day,
Dr. Zeimet opined Plaintiff had various limitations including: a positive straight leg raise
on the right; very limiting flexing, rotating, and extension in the lumbar spine; and flat
lordosis with marked tenderness on palpitation in the lumbar spine; depression, anxiety,
and physical conditions that affected Plaintiff’s conditions.
R. 415-16.
Dr. Zeimet
opined that Plaintiff would be able to walk for 1-2 blocks without a break, sit for 10-15
minutes, and that he would need to elevate his legs at least 40-50% of the day. R. 41718. Finally, Dr. Zeimet opined that Plaintiff’s symptoms and limitations had been in
place since Plaintiff’s injury in January 2008 and that his condition would require him to
be absent from work more than three times a month. R. 419.
Plaintiff presented for counseling with a psychiatrist, Mary Beagle, D.O., on three
separate occasions in October of 2010.
depression, anxiety, and ADHD.
R. 424-29.
Plaintiff was diagnosed with
R. 431, 434, 456.
Plaintiff reported on different
occasions that he was irritable, depressed, anxious, paranoid, angry, and that he was
hearing voices. R. 424, 426-28. He was assessed global assessment of functioning
scores between 30-50. R. 424, 426, 528. On April 8, 2011, Dr. Beagle completed a
mental medical source statement. R. 439-44. Dr. Beagle noted that Plaintiff had the
following symptoms: poor memory, sleep disturbances, mood disturbance, emotional
liability, delusions or hallucinations, psychomotor agitation or retardation, perceptual
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disturbances, blunt or inappropriate affect, paranoid, feeling guilt/worthlessness,
difficulty
with
thinking
or
concentration,
generalized
persistent
anxiety,
and
hostility/irritability. R. 439-40. Dr. Beagle opined that Plaintiff would miss more than
three times a month from work. R. 441. Out of 16 areas of functioning, Dr. Beagle
opined that 10 areas McNeal had no useful ability to function in those areas. R. 442.
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). Substantial evidence is “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).
III. DISCUSSION
Plaintiff argues that the ALJ (1) did not properly link his physical limitations in the
RFC to a medical opinion (2) did not base his RFC to the substantial evidence of record,
and (3) failed to further develop the record to better understand Plaintiff’s limitations.
Plaintiff also contends that the ALJ erroneously weighed or considered the opinions of
Dr. Wendt, Dr. Stoecker, and Dr. Miles. Plaintiff’s arguments are without merit.
First, an ALJ is not required to list every limitation along with a discussion of the
evidence supporting it when determining Plaintiff’s RFC. McKinney v. Apfel, 228 F.3d
860, 863 (8th Cir. 2000). Instead, the ALJ makes an RFC determination “based on all
of the relevant evidence, including the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.” McKinney,
228 F.3d at 863.
In this case, the ALJ identified substantial medical evidence
supporting his RFC determination and accounted for Plaintiff’s limitations by restricting
him to light work with the ability to lift and carry 20 pounds occasionally and 10 pounds
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frequently, walk for 4 of eight hours in a full eight hour day and requires a sit/stand
option at will and by restricting him to climbing stairs, bending, stopping, crouching,
crawling, balancing, twisting, and squatting occasionally. R. 16. The ALJ specifically
addressed Plaintiff’s treatment history, the objective clinical findings, Plaintiff’s
subjective complaints, and all of the medical opinions and evidence of record before
making a determination on Plaintiff’s RFC. R. 17-21.
Plaintiff first takes issue with the opinion of Dr. Wendt. Plaintiff argues that the
“ALJ does not properly explain how [Dr. Wendt’s] opinion is consistent with the record
when the record reveals greater restrictions than Dr. Wendt was able to evaluate or
even consider.” Suggestions in Support (Doc. # 7), at 16. In sum, Plaintiff argues that
the ALJ’s reliance on Dr. Wendt’s opinion is misguided because Dr. Wendt’s opinion
was given before Plaintiff underwent additional objective tests. The Court finds that Dr.
Wendt’s opinion is entitled to controlling weight because it is not inconsistent with the
other substantial evidence. See Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011)
(“[A] treating physician’s opinion is given controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence.”). Dr. Wendt released Plaintiff to light duty
work with no lifting greater than 25 pounds, bending at the waist, or overhead work.
Although Dr. Wendt did not have the benefit of reviewing Plaintiff’s subsequent medical
findings, the ALJ considered and provided a lengthy discussion of Plaintiff’s subsequent
medical findings before determining Plaintiff’s RFC. R. 17-21.
Plaintiff also argues it was error for the Court to assign some weight to Dr.
Stoecker’s opinion—that Plaintiff did not have any limitations—because the ALJ
concluded Plaintiff did have some functional limitations.
For example, Plaintiff
references the sit/stand option in Plaintiff’s RFC. Although Dr. Stoecker found that
Plaintiff did not have any limitations, Plaintiff testified at the administrative hearing that
he needs periods between alternating between sitting and standing. R. 68. It is clear
that the ALJ considered Plaintiff’s subjection allegations when including an at-will
sit/stand option in the RFC. An ALJ is permitted to consider all the relevant evidence—
including the claimant’s own descriptions of his limitations—when making an RFC
determination. McKinney, 228 F.3d at 863
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Next, Plaintiff contends it was error to assess great weight to Dr. Miles’s opinion.
Dr. Miles determined Plaintiff was considered 2% disabled under the Missouri Division
of Worker’s Compensation guidelines.
Plaintiff argues the opinion did not set forth
functional limitations, and only assessed a percentage of disability, which, Plaintiff
argues, is not applicable to the RFC assessment. The Court disagrees. When Dr.
Miles suggested that a 2% disability rating was appropriate, he stated “[w]e’ll place him
on no permanent work restrictions.” R. 334. In considering the 2% disability, the ALJ
correctly recognized that a Workers’ Compensation disability rating is not binding on the
Social Security Administration because the criteria applied by the two agencies are
different. See Cruze v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996) (whether a claimant
is disabled under state law is not binding on the Commissioner of Social Security). The
ALJ noted that the Workers’ Compensation disability rating is “simply evidence that
should be considered and assessed along with the overall record in its entirety.” R. 20.
The Court finds that the ALJ properly considered Plaintiff’s 2% disability rating, along
with other relevant evidence, when assessing Plaintiff’s RFC.
Finally, to the extent Plaintiff contends the ALJ did not fully develop the record,
the Court notes that the claimant has the burden of persuasion to demonstrate his RFC.
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). “[A]n ALJ is permitted to issue a
decision without obtaining additional medical evidence so long as other evidence in the
record provides a sufficient basis for the ALJ’s decision.” Anderson v. Shalala, 51 F.3d
777, 779 (8th Cir. 1995). Dr. Zeimet’s medical source statement—which was submitted
after the record was closed and after the ALJ rendered an unfavorable decision—does
not establish that the ALJ failed to develop the record, nor does it render the ALJ’s
decision unsupported by substantial evidence. Dr. Zeimet opinion stated, among other
things, that Plaintiff had a positive straight leg raise on the right; depression, anxiety,
and physical conditions that affected Plaintiff’s conditions, that he would need to elevate
his legs at least 40-50% of the day, and that Plaintiff’s symptoms and limitations were in
place since Plaintiff’s injury in January 2008. R. 415-19. However, the Record shows
Dr. Wendt released Plaintiff to light duty work in January 2008, Plaintiff only received
epidural injections for his back pain, never underwent physical therapy after three
doctors recommended it, was considered only 2% disabled under the Missouri Division
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of Workers’ Compensation guidelines, and was not considered to have a limitation in
physical functioning according to Dr. Stoecker. R. 18-20, 45-46, 231, 330, 367.
Also, Dr. Beagle’s opinion regarding Plaintiff’s mental health does not establish
that the ALJ erred by not fully developing the record. See Tellez v. Barnhart, 403 F.3d
953, 956-57 (8th Cir. 2005) (finding that the ALJ did not err by failing to order additional
assessments where “there [was] no indication that the ALJ felt unable to make the
assessment he did and his conclusion [was] supported by substantial evidence.”).
Here, there is substantial evidence to support the ALJ’s decision to assign little weight
to the mental health opinion offered by nurse practitioner Marsha Kempf.
A nurse
practitioner is considered an “other” medical source whose opinion is not accorded
controlling weight. Barton v. Astrue, No. 09-6046-SJ-NKL, 2010 WL 1488117 (W.D.
Mo. April 13, 2010) (citing Social Security Ruling 06-3p, 71 Fed. Reg. 45,593 (Aug. 9,
2006)). Prior to the hearing, Plaintiff had only presented for mental health treatment
once—a month before the administrative hearing—when he was examined by Ms.
Kempf. Although Ms. Kempf determined Plaintiff had a mental disability that prevented
him from gainful activity, Plaintiff was never prescribed any mental health medication.
The ALJ also reasoned Ms. Kempf’s opinion was given little weight because she was
not trained in mental conditions. R. 20. There was no need for the ALJ to order
additional mental health assessments because there is no indication that he felt unable
to make his assessment based on the evidence in the Record. Accordingly, the Court
finds that 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.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: March 7, 2013
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