Timmons v. Colvin

Filing 11

ORDER. The Commissioner's decision is affirmed. Signed on 9/25/14 by District Judge Nanette K. Laughrey. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JANICE TIMMONS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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No. 2:14-cv-04006-NKL

Defendant.
ORDER
Janice Timmons appeals the Commissioner of Social Security’s final decision
denying her application for disability insurance benefits and supplemental security
income. 42 U.S.C. §§ 401, et seq., and 1381, et seq. The Commissioner’s decision is
affirmed.
I.

Background
Timmons was born in 1961. She has past experience as a fast food worker, but the

majority of her employment, 23 years, has been as a licensed practical nurse. She last
worked full-time as an LPN about three or four years ago, and currently works part-time
as an LPN in a nursing home, every other weekend. She alleges February 26, 2011 as the
onset date of her disability.
Timmons saw her primary care physician, Thomas Hopkins, M.D., 14 times from
September 2008 to February 2010. Dr. Hopkins’ diagnoses included left shoulder pain,
hypertension, low back pain after a failed 2002 surgery, chronic pain with medication

management, history of siezures, and irritable bowel syndrome, and prescribed various
medications. In December 2009, he completed a statement indicating Timmons could
return to work or school with no limitations. Tr. 269.
In November 2009, Timmons was seen in a specialty clinic, reporting pain
everywhere. Leslie Hammett, M.D. diagnosed uncontrolled hypertension and chronic
pain. Tr. 334.
Timmons saw Taylor Bear, M.D. in February 2010 due to a seizure. Dr. Bear
noted some difficulty with movement of her left shoulder, and changed her seizure
medication. Tr. 441.
Timmons saw Robert Lieurance, M.D. in March 2010 for left shoulder pain. After
an x-ray and MRI, Dr. Leiurance administered an injection. Tr. 306. He continued to
treat her left shoulder from May 2010 to August 2010, referring her for physical therapy
and then for surgical repair. In August 2010, Dr. Lieurance gave Timmons a return-towork slip and recommended continued exercises.
In May 2010, Timmons also saw Robert Kenney, D.O., whose examination
showed tenderness of both shoulders, restricted lumbar spine motion, and knee
tenderness. In June 2010, Timmons saw Dr. Kenney again, for fibromyalgia and
degenerative pain.
Timmons had an overnight hospital stay in September 2010, following an episode
of symptomatic bradychardia. At discharge, the attending physician diagnosed it as
resolved, most likely related to medications and possible occult thyroid disease.
Timmons went to a hospital emergency room in November 2010 for dizziness and
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high blood pressure. A chest x-ray revealed no acute abnormality.
Timmons had a bilateral carotid Doppler sonogram in April 2011, revealing
severe, or 60-79 percent, bilateral stenosis. A carotid duplex study performed in May
2011 revealed plaque formation and 40 to 50 percent stenosis bilaterally, and Dr.
Raymond Vetsch recommended continued monitoring.
Timmons went to the emergency room in August 2011 for chest pressure and
headache lasting two days. A CT scan of the head revealed no abnormality, and the
attending physician diagnosed headaches, chest pain and renal insufficiency.
In August 2011, S. Subramanian, M.D. conducted a consultative examination. The
doctor found Timmons’ range of motion within normal limits in the shoulders, elbows,
wrists, knee, hip, and lumbar and cervical spine. Although there was a slight reduction in
straight leg raising, the doctor found normal strength in the upper and lower extremities
and in grip. Timmons’ cranial nerves were intact, and she could ambulate with normal
gait and without the use of an assistive device. Dr. Subramanian diagnosed hypertension
on medication, chronic obstructive airway disease, tobacco abuse, chronic back pain
secondary to lumbosacral disease, history of carpal tunnel syndrome, chronic anxiety and
depression. The doctor opined that Timmons had no disability in sitting, standing,
handling objects, hearing, speaking, or traveling. He opined that she might have some
limitation in lifting, carrying, or walking long distances. Tr. 704. The ALJ afforded Dr.
Subramanian’s opinion substantial weight.
Elissa Lewis, Ph.D. completed a psychiatric review technique form in August
2011.

Dr. Lewis opined that Timmons has a mild limitation in maintaining
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concentration, persistence, or pace. Tr. 715.
In January 2012, Timmons was treated at a hospital for an episode of acute renal
failure. Her records indicated she had a history of provoked seizure activity, likely
associated with high blood pressure.

A CT of the brain was negative for acute

hemorrhage or malignancy. She was started on a course of Dilantin. At a follow-up
neurology appointment with Ahmed Robbie, M.D. in February 2012, Timmons reported
that her seizures were well-controlled with the Dilantin, and her blood pressure was
controlled with metoprolol. Dr. Robbie noted no acute distress on physical examination,
and Timmons’ reflexes, sensation and coordination were all normal. Dr. Robbie opined
that Timmons’ seizures were likely induced by Percocet and morphine, and advised her
to reduce the use of narcotic medications.
Timmons saw Dr. Hopkins 33 times from February 2010 to September 2012. He
treated her for renal insufficiency, dizziness, chronic pain, hypertension, carotid artery
stenosis, headaches, right shoulder strain, depression, fibromyalgia, obesity, elevated
liver enzymes, hypocalcemia, anemia, and lower extremity swelling.

He prescribed

medications. In February 2011, Timmons requested and was given a note allowing her to
go back to work with no restrictions. In September 2012, Dr. Hopkins completed a
Medical Source Statement—Physical (MSSP).

Dr. Hopkins opined the following

limitations:
• Lift and/or carry less than five pounds frequently and five
pounds occasionally;
• Stand and/or walk for less than 15 minutes continuously and
for
less than one hours throughout an eight-hour day;
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• Sit less than 15 minutes continuously and less than one hour
in an
eight-hour day;
• Limited push and/or pull;
• Never climb, balance, stoop, kneel, crouch, crawl, reach, and
handle;
• Avoid any exposure to extreme cold, extreme heat, weather,
wetness, humidity, dust, fumes, vibration, hazards, and
heights; and
• Due to pain, she would need to lie down or recline to alleviate
symptoms and her medications would cause limitations.
Tr. 826-27. The ALJ afforded Dr. Hopkins’ opinion little weight.
A few days after preparing the MSSP, Trina Larery, a certified family nurse
practictioner who works with Dr. Hopkins, completed a Physician’s Statement for
Disabled License Plates for Timmons. Ms. Larery indicated Timmons could not walk 50
feet without stopping to rest and was permanently disabled. The ALJ afforded the
determination little weight.
Timmons testified at the hearing before the ALJ. She said her full-time LPN job
ended because of her pain. Her back pain is her biggest problem. She can only walk for
a few minutes before she needs to take a break, and walking even one quarter of a block
is too painful, but she must move constantly because of pain and spasms. She cannot
stand for more than ten or fifteen minutes, or lift more than ten pounds. She has pain in
her shoulders, and the left one is worse. Pain in her legs and knees worsens with walking
and standing for a long time. Stooping and bending aggravate her leg and knee pain. She
has headaches almost every day due to high blood pressure. She takes care of her 14year old daughter who lives with her, manages her personal care, does laundry and folds
clothes, prepares meals daily, grocery shops once or twice a week, goes to the pharmacy,
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goes to her daughter’s volleyball games, manages her finances, and watches television
and reads. Timmons drives a car, and drove herself to the hearing, a 40-minute trip, with
no reported difficulty. Tr. 38-52. As noted, she works every other weekend.
The ALJ found that Timmons’ part-time work was not substantial gainful activity,
and that she had severe impairments of degenerative changes of the left shoulder, status
post-surgery; hypertension; degenerative changes of the lumbar spine, status postsurgery; chronic pain syndrome; fibromyalgia; arthralgia of both knees; and seizures.
The ALJ acknowledged Timmons’ additional allegations concerning carotid stenosis,
episodes of renal failure, irritable bowel syndrome, degenerative changes of the right
shoulder, headaches, and obesity, but concluded the conditions were not severe and that
there were no functional limitations.
The ALJ determined that Timmons could perform a range of light work as defined
in 20 C.F.R. 404.1567(b) and 416.967(b), or work requiring lifting, carrying or both, of
20 pounds occasionally and 10 pounds frequently; standing, walking or both, for six
hours in an eight-hour workday; and sitting six hours in an eight-hour workday, with the
option to sit for 30 minutes and then stand for 30 minutes as needed. The ALJ further
determined that Timmons could occasionally stoop, crouch, crawl, and climb ramps and
stairs; occasionally reach overhead with the upper left non-dominant extremity; and must
avoid concentrated exposure to dangerous machinery and unprotected heights, cold
temperature extremes. Tr. 20.
Although Timmons could not perform any of her past work, the ALJ found she
could perform other work as an office helper (DOT # 239.567-010), electrical sub6

assembler (DOT # 729.684-054), and marker (DOT # 209.587-034), jobs existing in
significant numbers in the national economy. Tr. 26-27.
II.

Discussion
Review of the Commissioner’s decision is limited to a determination of whether it

is supported by substantial evidence on the record as a whole. Finch v. Astrue, 547 F.3d
993, 935 (8th Cir. 2008). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept as adequate to support the Commissioner’s
conclusion. Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008). Evidence that both
supports and detracts from the Commissioner’s decision should be considered, and an
administrative decision is not subject to reversal simply because some evidence may
support the opposite conclusion. Finch, 547 F.3d at 935.
Timmons argues that the decision must be reversed because the ALJ did not
afford controlling weight to the opinion of Dr. Hopkins, her primary care physician, and
because the ALJ’s RFC finding is not based on “some” medical evidence.
A. The weight afforded to Dr. Hopkins’ opinion
An ALJ decides how much weight to afford each medical opinion. See Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (“It [is] the ALJ’s task to resolve conflicts in
the evidence.”).

As a general rule, a treating source opinions may be accorded

controlling weight if it is well-supported by clinical findings and are not inconsistent with
the evidence as a whole.

20 C.F.R. §§ 404.1527, 416.927.

A treating physician’s

opinion “does not automatically control in the face of other credible evidence on the
record that detracts from” it. Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010). An ALJ
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may also give less weight to a treating physician’s opinion when based largely on a
claimant’s subjective complaints rather than objective medical evidence, Kirby v. Astrue,
500 F.3d 705, 709 (8th Cir. 2007), or discount it if conclusory and lacking citation to
medical evidence, Strongson v. Barnhart, 361 F.3d 1066, 1070-71 (8th Cir. 2004).
Here, the physical limitations Dr. Hopkins set out in the MSSP were extreme and
unsupported by the record. Dr. Hopkins indicated Timmons could stand or walk no more
than one hour in an eight-hour work day, but the limitation was inconsistent with
Timmons’ reported activities, including working part-time as an LPN. Dr. Hopkins
restricted Timmons from any reaching, but objective findings showed she had full
strength in her upper extremities. The ALJ also noted that Dr. Hopkins’ treatment
records did not describe functional limitations that would support the extreme limitations
he recommended. Dr. Hopkins’ records often showed visits for routine matters and
Timmons’ visits frequently related to medication refill follow-ups. See Tr. 25, 266-303,
537-61, 786-814, and 831-38.
The ALJ also found Dr. Timmons’ limitations to be based largely on Timmons’
subjective reports of pain—reports the ALJ found not fully credible. Tr. 21. Timmons
had left shoulder surgery in June 2010. In follow up in August 2010, her left shoulder
was minimally tender to palpation, she had good cuff strength, and good range of motion.
Dr. Lieurance noted that she was doing well, released her to return to work, and told her
to continue exercises. The ALJ noted little indication in records from Timmons’ health
care providers that she reported being unable to stand very long due to pain. She was not
prescribed any assistive devices.

Her physical examinations were generally within
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normal limits.
It was also appropriate for the ALJ to consider Timmons’ part-time work as an
LPN. See Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (ALJ properly considered
evidence of claimant’s part-time work as kitchen helper as evidence that claimant was not
disabled). Although not qualifying as substantial gainful activity, the ALJ concluded the
part-time work did undercut Timmons’ allegation that she had been completely disabled
since her alleged disability onset date.
Timmons’ function report submitted near the time she filed her claims also reflects
activities inconsistent with her claim of total disability, including caring for her daughter,
managing personal care, doing laundry, preparing meals daily, driving, and grocery
shopping once or twice a week. Although Timmons testified she could not sit very long,
she stated in the report that she spent time during the day doing sedentary activities—
watching television and reading, and she testified that she drove 40 miles to attend the
hearing, with no reported difficulty. It was appropriate for the ALJ to consider such
evidence as detracting from Timmons’ claim. See Medhaug v. Astrue, 578 F.3d 805, 817
(8th Cir. 2008 ) (ALJ did not err in finding claimant’s daily living activities inconsistent
with disability).
There is substantial evidence to support the ALJ’s decision to give Dr. Hopkins’
opinion little weight.
B. Formulation of the RFC
Timmons argues that the ALJ’s RFC finding is not supported by substantial
evidence and fails to provide a narrative discussion describing how the evidence supports
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each conclusion, citing specific medical and nonmedical evidence, in accordance with
SSR 96-8p. Doc. 7, p. 16. Timmons points out that although the ALJ placed substantial
weight on Dr. Subramanian’s opinion, the ALJ imposed restrictions that the doctor did
not, and argues that the doctor’s opinion was vague and could not be relied on. Id.
The RFC need not precisely mirror any particular medical opinion. Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011). Further, while an RFC must be based on some
medical evidence, that is, medical records and observations, it is not based solely on
medical evidence. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007); Singh v. Apfel, 222
F.3d 448, 450 (8th Cir. 2000); and 20 C.F.R. §§ 404.1512(B)(1), 404.1513(b),
404.1528(b)-(c), 416.912(b)(1), 416.913(b), and 416.928(b)-(c). The RFC must be based
on all relevant, credible evidence of record. Cox, 495 F.3d at 619.
Here, the ALJ cited and considered Timmons’ medical treatment records, the
medical opinion evidence, and Timmons’ subjective allegations. Tr. 16-26. The ALJ
found that due to her complaints of pain, the record supported the conclusion that
Timmons was limited to light exertional work and, to prevent exacerbation of pain,
precluded her from work requiring more than occasional stooping, crouching, crawling,
and climbing of ramps or stairs. The ALJ accounted for Timmons’ history of shoulder
repair by reducing the RFC to allow for no more than occasional overhead reaching with
the upper left non-dominant extremity. Tr. 26.
While it is true that Dr. Subramanian did not specifically opine that Timmons was
limited to light exertional level work or that she required a sit-stand option, the ALJ’s
limitation of Timmons’ RFC in those respects reflected his consideration of her
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subjective allegations and was consistent with the overall record. Tr. 16-26.
Substantial evidence supports the ALJ’s finding that Timmons retained the RFC
for a reduced range of light exertional work.
III.

Conclusion
The Commissioner’s decision is affirmed.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 25, 2014
Jefferson City, Missouri

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