Cook v. Colvin

Filing 27

ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 9/6/16 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)

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

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Case No.
15-4145-CV-C-REL-SSA

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Jason Cook seeks review of the final decision of the Commissioner of
Social Security denying plaintiff’s application for disability benefits under Title II of the
Social Security Act (“the Act”). Plaintiff argues that the ALJ erred in finding plaintiff’s
testimony regarding the effects of his impairments not entirely credible. I find that the
substantial evidence in the record as a whole supports the ALJ’s finding that plaintiff is
not disabled. Therefore, plaintiff’s motion for summary judgment will be denied and the
decision of the Commissioner will be affirmed.
I.

BACKGROUND
On October 10, 2012, plaintiff applied for disability benefits alleging that he had

been disabled since March 1, 2008. He later amended his alleged onset date to August
17, 2012, the day he stopped working (Tr. at 29, 124). Plaintiff’s disability stems from
Crohn’s disease, short bowel syndrome, fistula, chronic fatigue, abdominal pain with
diarrhea and vomiting, possible colon cancer and malnutrition (Tr. at 50, 124).
Plaintiff’s application was denied on November 28, 2012. On March 4, 2014, a hearing
was held before an Administrative Law Judge. On March 27, 2014, the ALJ found that

plaintiff was not under a “disability” as defined in the Act. On May 7, 2015, the Appeals
Council denied plaintiff’s request for review. Therefore, the decision of the ALJ stands
as the final decision of the Commissioner.
II.

STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a

“final decision” of the Commissioner. The standard for judicial review by the federal
district court is whether the decision of the Commissioner was supported by substantial
evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d
178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The
determination of whether the Commissioner’s decision is supported by substantial
evidence requires review of the entire record, considering the evidence in support of
and in opposition to the Commissioner’s decision. Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The
Court must also take into consideration the weight of the evidence in the record and
apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d
1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450
U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5
(8th Cir. 1991). However, the substantial evidence standard presupposes a zone of

2

choice within which the decision makers can go either way, without interference by the
courts. “[A]n administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.” Id.; Clarke v.
Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.

BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable

to return to past relevant work by reason of a medically-determinable physical or mental
impairment which 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). If the plaintiff establishes that he is
unable to return to past relevant work because of the disability, the burden of
persuasion shifts to the Commissioner to establish that there is some other type of
substantial gainful activity in the national economy that the plaintiff can perform.
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d
974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting
out a sequential evaluation process to determine whether a claimant is disabled. These
regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential
evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and
is summarized as follows:
1.

Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.

3

2.
Does the claimant have a severe impairment or a combination of
impairments which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.

Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.

4.

Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.

5.

Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.

IV.

THE RECORD
The record consists of the testimony of plaintiff and vocational expert Denise

Weaver, in addition to documentary evidence admitted at the hearing.
A.

ADMINISTRATIVE REPORTS
The record contains the following administrative reports:

Earnings Record
The record shows that plaintiff earned the following income from 2002 through
2011:
Year

Earnings

Year

2002

$ 3,837.29

2007

$ 0.00

2003

6,275.08

2008

10,117.00

4

Earnings

2004

2,848.94

2009

2,430.83

2005

6,770.76

2010

15,287.30

2006

394.30

2011

12,858.00

(Tr. at 117).
Function Report
In a Function Report dated October 28, 2012, plaintiff reported that he watches
television and does small things for his four-year-old daughter. He naps from noon until
3:00 p.m., then visits with his wife and children until he goes to bed around 9:00 or
10:00 p.m. (Tr. at 139). Plaintiff stays at home with his four-year-old and cares for her
during the day (Tr. at 140). Plaintiff can care for his personal needs (Tr. at 140), and he
prepares his own meals such as sandwiches, fresh meat, potatoes, vegetables, and
grain products (Tr. at 141). His cooking depends on what hours his wife works;
sometimes she prepares meals (Tr. at 141). When plaintiff cooks, it takes him 35
minutes to an hour (Tr. at 141).
Plaintiff can do laundry and do simple tasks around the house (Tr. at 141). He
has to stay near a bathroom and his fatigue causes him to lie down every couple of
hours (Tr. at 141). He does not drive because he does not have a driver’s license (Tr.
at 142). Plaintiff plays his guitar every day for about 20 minutes (Tr. at 143). Plaintiff
only goes out to go to the doctor or to go next door to his mother’s house (Tr. at 143).
Plaintiff’s impairments affect his ability to lift, squat, bend, stand, reach, walk, sit,
kneel, climb stairs, complete tasks, and use his hands (Tr. at 144). He can walk for 100
yards before needing to rest (Tr. at 144). He has to sit for an hour to build up energy

5

after walking 100 yards (Tr. at 144). He can pay attention “as long as needed.” (Tr. at
144). He finishes what he starts, and he can follow directions very well (Tr. at 144).
Missouri Supplemental Questionnaire
In this form, dated October 28, 2012, plaintiff reported that he plays video
games, puzzles or uses a computer for 20 to 30 minutes at one sitting (Tr. at 148). He
had a driver’s license, but it was suspended (Tr. at 148). Plaintiff reported that he was
not able to complete the form without help -- his wife wrote his answers because his
wrist causes him too much pain to write (Tr. at 149).
B.

SUMMARY OF MEDICAL RECORDS
On August 17, 2012, plaintiff stopped working. This is his amended alleged

onset date.
On August 20, 2012, plaintiff saw Carey Vaughan, D.O., to establish care (Tr. at
195-196). Plaintiff said he had had Crohn’s disease1 since 2008. “Does well on meats,
cooked veggies, does bad on raw foods especially w/seeds.” For the past two weeks
he had been running a fever of up to 102 degrees. Plaintiff reported low back pain and
abdominal cramps. Plaintiff reported having lost 60 pounds since February or March of
1

“Crohn’s disease is an inflammatory bowel disease (IBD). It causes inflammation of
the lining of your digestive tract, which can lead to abdominal pain, severe diarrhea,
fatigue, weight loss and malnutrition. Inflammation caused by Crohn’s disease can
involve different areas of the digestive tract in different people. The inflammation
caused by Crohn’s disease often spreads deep into the layers of affected bowel tissue.
Crohn’s disease can be both painful and debilitating, and sometimes may lead to
life-threatening complications. While there’s no known cure for Crohn’s disease,
therapies can greatly reduce its signs and symptoms and even bring about long-term
remission. With treatment, many people with Crohn’s disease are able to function well.”
http://www.mayoclinic.org/diseases-conditions/crohns-disease/basics/definition/con-200
32061

6

2012, and said he had diarrhea constantly. Plaintiff weighed 199 pounds. After
performing a physical exam, Dr. Vaughan assessed Crohn’s disease, fever of unknown
origin, weight loss, diarrhea, and tachycardia.2 She ordered fasting labs, told plaintiff to
increase his sulfasalazine3 which he had begun taking sometime that year (the month is
illegible), ordered a chest x-ray and colonoscopy, and prescribed Atenolol for
tachycardia.
On August 24, 2012, plaintiff had a colonoscopy performed by Terry Nold, D.O.,
due to acute onset of diarrhea with transient bright red rectal bleeding (Tr. at 186).
“Patient with prior diagnosis of Crohn’s disease diagnosed at the University of Missouri.
He has been placed on Azulfidine 1000 mg daily and he has done quite well until
recently. He was feeling well and subsequently discontinued his medication.” Plaintiff

2

“Tachycardia is a faster than normal heart rate at rest. A healthy adult heart
normally beats 60 to 100 times a minute when a person is at rest. If you have
tachycardia, the heart rate in the upper chambers or lower chambers of the heart, or
both, is increased. Heart rate is controlled by electrical signals sent across heart
tissues. Tachycardia occurs when an abnormality in the heart produces rapid electrical
signals. In some cases, tachycardia may cause no symptoms or complications.
However, tachycardia can seriously disrupt normal heart function, increase the risk of
stroke, or cause sudden cardiac arrest or death. Treatments may help control a rapid
heartbeat or manage diseases contributing to tachycardia.”
http://www.mayoclinic.org/diseases-conditions/tachycardia/basics/definition/con-200430
12
3

Sulfasalazine, also called Azulfidine, is used to treat and prevent ulcerative colitis.
It works inside the bowels by helping to reduce the inflammation and other symptoms of
the disease. Sulfasalazine enteric-coated tablets are used to treat adults and children
with rheumatoid arthritis in patients who have not been helped by or who cannot
tolerate other medicines (eg, salicylates or NSAIDs) for rheumatoid arthritis.

7

was assessed with acute proctocolitis (inflammation
of the colon and rectum) with diffuse ulceration and
granuloma formation. He was told to continue
Asacol (non-steroidal anti-inflammatory), and he was
prescribed Prednisone (steroid) daily for one week
with a reduced dosage each week for six weeks. A
repeat colonoscopy was recommended in 8 to 12 weeks.
On September 19, 2012, plaintiff saw Carey Vaughan, D.O., for a follow up (Tr.
at 194). “Has been doing better since he was put on the steroids but he noticed more
pain & D since his dose has been reduced. . . . Still having pain most days.” Plaintiff
weighed 190 pounds. His physical exam was normal. Plaintiff’s dose of Prednisone
was continued at 40 mg and he was told to begin to taper it in two weeks. “Advised to
use bone broth and veggie rich soups, probiotics & anti-inflammatory nutrients to get
stronger.”
On October 10, 2012, plaintiff applied for disability benefits.
On November 15, 2012, plaintiff had a follow up with Carey Vaughan, D.O. (Tr.
at 193, 261). Plaintiff reported still having a lot of pain caused by the fistula4 and the

4

“Anal fistula is the medical term for an infected tunnel that develops between the
skin and the muscular opening at the end of the digestive tract (anus). Most anal
fistulas are the result of an infection that starts in an anal gland. This infection results in
an abscess that drains spontaneously or is drained surgically through the skin next to
the anus. The fistula then forms a tunnel under the skin and connects with the infected
gland. Surgery is usually needed to treat anal fistula.”
http://www.mayoclinic.org/diseases-conditions/anal-fistula/basics/definition/con-200323
52

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left sided colitis (inflammation of the lining of the colon) “still hurts the most.” He
described his pain as a 5 to 6 out of 10 at its worst. He weighed 182 pounds. His
physical exam was normal. Dr. Vaughan assessed severe Crohn’s disease, perianal
fistula, and proctitis (inflammation of the rectum and anus). Plaintiff was told to take
Prednisone at 30 mg for two weeks and then reduce it to 20 mg for 4 weeks, then 10
mg for 4 weeks. He was prescribed Tramadol as needed for pain.
On December 4, 2012, plaintiff saw Roxanne Lim, M.D., after having been
referred by Dr. Vaughan (Tr. at 199-201). Plaintiff had last been seen in 2009 after
having been diagnosed with Crohn’s disease and rectal fistula in 2008. “He was started
on Ciprofloxacin [antibiotic] and Flagyl [also called Metronidazole, an antibiotic] for his
rectal fistula. He was also started on sulfasalazine for his Crohn’s disease. The patient
was then lost to follow up. The patient reported he has been doing well since then and
discontinued his medications. Symptoms recurred in July 2012 when he started feeling
tired as well as having joint pains, weight loss, nausea and vomiting. He has frequent
bowel movements but they are nonbloody. He reports that he would also have feces
coming out from his rectal fistula.” Plaintiff was taking Prednisone and Sulfasalazine.
“He reports some improvement in symptoms but continues to be tired. He has joint
pains as well as the severe back pain.” Plaintiff’s Prednisone dose was 30 mg daily,
and he had a prescription for Tramadol as needed for pain. Dr. Lim ordered lab work
and renewed plaintiff’s prescriptions. She also prescribed Flagyl for rectal fistula and
ordered further tests.

9

On December 11, 2012, plaintiff had an MRI of his pelvis (Tr. at 213). Michael
Aro, M.D., diagnosed left intersphincteric perianal fistula and small right-sided perianal
intersphincteric abscess.
On January 8, 2013, plaintiff saw Jack Bragg, D.O., for a biopsy of the colon (Tr.
at 203-212). Plaintiff weighed 175 pounds. He was diagnosed with chronic colitis with
mild activity in the right colon, chronic colitis with moderate activity in the left colon, and
no evidence of active colitis in the transverse colon (see diagram on page 8). No
dysplasia5 was seen.
On January 13, 2013, plaintiff saw Jack Bragg, D.O., a gastroenterologist, for a
follow up on his colonoscopy, blood work, MRI and biopsy (Tr. at 219-222). Plaintiff’s
tests showed intense erythema,6 ulcers in the proximal sigmoid colon (see diagram on
page 8), ulcers on the IC valve,7 mild activity re: colitis in the right colon, and moderate
activity re: colitis in the left colon. “Upon continuation of my interview with this patient,
the patient notes that he does not want to start on biologics8 at this time as he feels it is
poison to his body. He continues to have draining from his fistula and has Flagyl 500
mg t.i.d. [three times a day] which he is currently somewhat compliant on. He may miss

5

Cells that look abnormal under a microscope but are not cancer.

6

Redness suggestive of active inflammation.

7

An ileocecal valve is a sphincter muscle valve that separates the small intestine and
the large intestine.
8

Biologics are genetically-engineered proteins derived from human genes. They are
designed to inhibit specific components of the immune system that play pivotal roles in
fueling inflammation.

10

a dose here or there. The patient also continues to have joint pains which he is taking
Tramadol for. He is somewhat compliant with his sulfasalazine as he states that
sometimes he forgets doses. He does have hydrocortisone rectal suppositories;
however, he states that he does not like to use these as he does not like to stick them
in his rectum.” Plaintiff denied blood in his stools. Plaintiff weighed 185 pounds. His
physical and mental exam was normal. He was told to wean off Prednisone from 30
mg to zero by decreasing it 5 mg each week.
On February 19, 2013, plaintiff saw Jack Bragg, D.O., for a follow up (Tr. at 223225). “He was last seen here in the clinic on January 15. At that time he was
complaining of a lot of joint pain . . . We referred him to Dr. Wu, but he did not keep
that appointment. . . . He stated that his bowel function was unchanged. Fistulas are
not draining at the present time. He is not having any fever or chills, or abdominal pain
at this time.” Plaintiff also denied vomiting and denied any side effects from
Prednisone. “He is not bleeding at this time.” Under psychosocial history, the record
states, “He is not a smoker. He does work.” Plaintiff’s physical exam was normal. Dr.
Bragg refilled plaintiff’s Tramadol as needed for pain. “I will try to get him to see Dr. Wu
again.”
On March 21, 2013, plaintiff saw Hazem Hammad, M.D., a gastroenterologist
(Tr. at 226-228). “Jason has been on sulfasalazine 1 gram 4 times a day since his
diagnosis in 2008. He has also required some pain medications intermittently for some
peripheral joint pain and abdominal pain. Lately, he seems to be doing well.” About a
week earlier plaintiff thought he had the flu with some nausea and vomiting which had

11

since resolved. “He currently has 2-3 soft bowel movements every day. No melena9 or
hematochezia.10 His weight has been stable.” Plaintiff had cut his sulfasalazine down
to 3 times a day from 4 which had helped with his nausea. He denied vomiting. On
exam plaintiff had no tenderness in any joints, no arthritis or joint effusion (fluid in the
joint), and no sacroiliac joint tenderness. His exam was normal. Dr. Hammad noted
that plaintiff’s ulcerative colitis11/Crohn’s disease “seems to be in clinical remission. He
did require a course of prednisone recently for a flare of his symptoms. At this point, I
do not think he would need any increase in the dose or additional medication to control
his colitis. . .” Dr. Hammad also assessed history of perianal fistula “that seems to be in
remission as well. He is not having any pain or discharge from that fistula.” Dr.
Hammad recommended plaintiff see a rheumatologist for joint pain.
On April 3, 2013, plaintiff saw Celso Velazquez, M.D., a rheumatologist, due to
complaints of joint pain (Tr. at 215-218). Plaintiff said he had experienced joint pain
since he was 16 years of age. “Notes discomfort in shoulders, elbows, wrists, left

9

Melena is dark sticky feces containing partly digested blood, indicative of bleeding
in the upper part of the digestive tract.
10

Bright red blood in the stool, usually from the lower gastrointestinal tract.

11

“Ulcerative colitis is an inflammatory bowel disease (IBD) that causes long-lasting
inflammation and ulcers (sores) in your digestive tract. Ulcerative colitis affects the
innermost lining of your large intestine (colon) and rectum. Symptoms usually develop
over time, rather than suddenly. Ulcerative colitis can be debilitating and sometimes
can lead to life-threatening complications. While it has no known cure, treatment can
greatly reduce signs and symptoms of the disease and even bring about long-term
remission.”
http://www.mayoclinic.org/diseases-conditions/ulcerative-colitis/basics/definition/con-20
043763

12

fingers (plays guitar), mid back, knees.” Plaintiff’s knee pain was aggravated by walking
up stairs. Plaintiff rated his pain a 5 out of 10 in severity. On exam plaintiff had no
swollen or tender joints, normal range of motion in all joints, no sacroiliac tenderness,
good extension in his spine, he could bend over and touch his toes, and he had normal
muscle strength in all limbs. He had crepitus12 in his knees and anterior tenderness.
“He does not have any joint swelling. Pt has nonspecific widespread pain. Also
appears to have patellofemoral syndrome.13 Pt previously treated with Corticosteroids
making AVN14 a possible etiology of knee pain.” He was assessed with arthralgias (joint
pain) and patellofemoral syndrome. Knee x-rays were ordered, and he was prescribed
Meloxicam (non-steroidal anti-inflammatory) 15 mg per day.
On May 1, 2013, plaintiff saw Jack Bragg, D.O., for a follow up (Tr. at 231-232).
“Over the last several months his Crohn’s has been going downhill.” Plaintiff reported

12

A grating sound or sensation produced by friction between bone and cartilage or
the fractured parts of a bone.
13

“Patellofemoral pain syndrome is pain at the front of your knee, around your
kneecap (patella). Sometimes called ‘runner’s knee,’ it’s more common in people who
participate in sports that involve running and jumping. The knee pain often increases
when you run, walk up or down stairs, sit for long periods, or squat. Simple treatments - such as rest and ice -- often help, but sometimes physical therapy is needed to ease
patellofemoral pain.”
http://www.mayoclinic.org/diseases-conditions/patellofemoral-pain-syndrome/home/ovc20169020
14

“Avascular necrosis is the death of bone tissue due to a lack of blood supply. Also
called osteonecrosis, avascular necrosis can lead to tiny breaks in the bone and the
bone’s eventual collapse. The blood flow to a section of bone can be interrupted if the
bone is fractured or the joint becomes dislocated. Avascular necrosis is also
associated with long-term use of high-dose steroid medications.”
http://www.mayoclinic.org/diseases-conditions/avascular-necrosis/basics/definition/con20025517

13

having had some nausea, vomiting and abdominal pain. Bowel movements were
nonbloody and every day at least 3 times a day, mostly associated with food. “He
maintains that sulfasalazine has stopped working for him right now.” Plaintiff’s exam
was normal except he had mild tenderness on the left side of his abdomen. Dr. Bragg
prescribed azathioprine15 and told him to continue taking sulfasalazine.
On May 29, 2013, plaintiff saw Jack Bragg, D.O., for a follow up (Tr. at 234-235).
Since his last visit on May 1, 2013, plaintiff had had a C. difficile16 study which was
negative. “He is on his fourth week of Imuran treatment and describes improvement in
his bowel habits and is now having solid stools, 2-3 times per day. Additionally his
abdominal pain is much improved since the addition of Imuran.” Plaintiff denied melena
(see footnote 9 on page 12), hematochezia (see footnote 10 on page 12), nausea,
vomiting, and weight loss. He did report developing fevers in the evening. Plaintiff
rated his pain a 5 out of 10 in severity. He had not been to see a rheumatologist for
joint pain because he said he could not afford it. Plaintiff’s exam was normal. He was
continued on Imuran, but his sulfasalazine was discontinued. It was recommended that
he follow up with rheumatology and get the x-rays that were ordered at his last clinic
visit.
On June 19, 2013, plaintiff saw Carey Vaughan, D.O., for a follow up (Tr. at
260). Plaintiff reported evening fevers, joint pain (for which another doctor had
15

Also called Imuran, an immunosuppressant used to treat rheumatoid arthritis.

16

“Clostridium difficile, often called C. difficile or C. diff, is a bacterium that can cause
symptoms ranging from diarrhea to life-threatening inflammation of the colon.”
http://www.mayoclinic.org/diseases-conditions/c-difficile/home/ovc-20202264

14

prescribed Meloxicam, a non-steroidal anti-inflammatory). Plaintiff had been out of
Atenolol (for tachycardia). He weighed 158 pounds. His physical exam was normal.
Plaintiff’s Atenolol was refilled. X-rays were ordered and he was given a referral for a
rheumatology consult.
On July 2, 2013, plaintiff saw Carey Vaughan, D.O. (Tr. at 259). Plaintiff
reported decreased appetite. He had been staying in bed all the time, he had little
energy, he was eating twice a day and denied diarrhea but had lost 10 pounds in two
weeks. He weighed 148 pounds. His exam was normal except he was described as
thin, pale, and ill appearing. He was assessed with uncontrolled Crohn’s disease,
intermittent fevers and weight lows. He was started on Prednisone.
On July 12, 2013, plaintiff saw Eston Schwartz, M.D., at Goldschmidt Cancer
Center (Tr. at 254-256). Plaintiff stated that over the past few months he had lost a
“huge amount of weight” and had lost over 100 pounds in the past year. “Jason comes
in today stating he has gained about 15-20 pounds back since his visit to the resident
clinic. He is feeling much better. His fever and chills have [gone] away. He is more
active. He does not have any more diarrhea and his arthritis has improved.” His
performance status was noted to be, “No physically strenuous activity, but ambulatory
and able to carry out light or sedentary work, (e.g., office work, light house work).”
Plaintiff’s physical exam was normal; he had normal range of motion in his extremities
without obvious weakness. Plaintiff weighed 172 pounds. Plaintiff’s platelet17 count

17

A small colorless disk-shaped cell fragment without a nucleus, found in large
numbers in blood and involved in clotting.

15

was high. “We did discuss his abnormal CBC.18 Since he is quite young and his
platelet count has somewhat stabilized around 1.2 million,19 I have not suggested
intervention at this point. As far as the causes of significant thrombocytopenia,20 acute
and chronic inflammation due to rheumatologic disorders and inflammatory bowel
disease can be major causes.”
On July 19, 2013, plaintiff saw Eston Schwartz, M.D., at Goldschmidt Cancer
Center (Tr. at 251-253). “Jason comes in today for CBC and bone marrow biopsy. He
states he is unable to stay for a bone marrow biopsy because he left his kids home
alone. He has been feeling great. He has gained over 10 pounds since last week. His
stools have normalized and he is quite active. He states he has no acute complaints.”
Plaintiff’s exam was normal except edema in his legs. He weighed 181 pounds. He

18

Complete blood count is a test which measures several components and features
of your blood including red blood cells which carry oxygen; white blood cells which fight
infection; hemoglobin, the oxygen-carrying protein in red blood cells; hematocrit, the
proportion of red blood cells to the fluid component, or plasma, in your blood; and
platelets, which help with clotting.
19

Normal is 150,000 to 450,000 platelets per microliter of circulating blood.
http://www.mayoclinic.org/diseases-conditions/thrombocytopenia/basics/causes/con-20
027170
20

“If for any reason your blood platelet count falls below normal, the condition is
called thrombocytopenia. Normally, you have anywhere from 150,000 to 450,000
platelets per microliter of circulating blood. Because each platelet lives only about 10
days, your body continually renews your platelet supply by producing new platelets in
your bone marrow. Thrombocytopenia can be inherited or it may be caused by a
number of medications or conditions. Whatever the cause, circulating platelets are
reduced by one or more of the following processes: trapping of platelets in the spleen,
decreased platelet production or increased destruction of platelets.”
http://www.mayoclinic.org/diseases-conditions/thrombocytopenia/basics/causes/con-20
027170

16

was assessed with Thrombocytosis secondary to Crohn’s disease, anemia,21 and slight
leukocytosis.22 Plaintiff was told to continue taking over-the-counter folic acid and to
add an iron supplement.
On August 16, 2013, plaintiff saw Eston Schwartz, M.D., at Goldschmidt Cancer
Center (Tr. at 247-250). “Jason comes in today for follow up. We do continue to follow
his fluctuating CBC. He states that he has been doing good and his weight has been
up. However, he did not take his prednisone for about a week last week. He does feel
more achy today with pain in his muscles and joints. . . . No more diarrhea at this time
though.” He reported joint and muscle pains and numbness on his left lateral
quadriceps (outside of the thigh) associated with mid to lower back pain. His
performance status was listed as, “No physically strenuous activity, but ambulatory and
able to carry out light or sedentary work (e.g., office work, light house work).” On exam
he had abdominal tenderness but his extremities were normal. He weighed 175
pounds. Dr. Schwartz assessed thrombocytosis secondary to Crohn’s disease. He
also assessed anemia and directed plaintiff to take over-the-counter iron daily and Folic
acid daily, as plaintiff’s sulfasalazine causes a decline in folic acid. “I was under the
21

“Anemia is a condition in which you don’t have enough healthy red blood cells to
carry adequate oxygen to the body’s tissues. Having anemia may make you feel tired
and weak.” http://www.mayoclinic.org/diseases-conditions/anemia/home/ovc-20183131
22

“A high white blood cell count is an increase in disease-fighting cells in your blood.
The exact threshold for a high white blood cell count varies from one laboratory to
another. In general, for adults a count of more than 11,000 white blood cells
(leukocytes) in a microliter of blood is considered a high white blood cell count. A high
white blood cell count is also called leukocytosis.”
http://www.mayoclinic.org/symptoms/high-white-blood-cell-count/basics/definition/sym-2
0050611

17

assumption that this prednisone was short term. However, if it is long term, I have
suggested calcium and vitamin D as well as a bone density examination. He has been
on it now for 7-8 months and it does not appear that he is coming off of it very quickly. I
would be worried about vertebral fractures given the length of this prednisone and the
dose.”
On August 28, 2013, plaintiff saw Jack Bragg, D.O., for a follow up (Tr. at 237239). “He currently denies any abdominal pain or diarrhea. Denies any hematochezia
[see footnote 10 on page 12]. Has been tolerating all kinds of foods very well.”
Plaintiff’s exam was normal. “As far as his symptoms of Crohn’s go, he is doing well. It
is hard to say whether his improvement in the symptoms is because of steroids or
Imuran.” Dr. Bragg recommended plaintiff taper off his prednisone slowly and continue
with Imuran.
On September 13, 2013, plaintiff saw Eston Schwartz, M.D., at Goldschmidt
Cancer Center (Tr. at 244-246). “Jason returns today for follow up. He does continue
to taper his prednisone. He is feeling good and is gaining weight. He has gained about
15 pounds since our last visit. He states he is more active and energetic. He,
however, is trying to get disability due to the fact that he was not able to work for so
long. He does complain of continued muscle and bone pain at times and weakness in
the leg joints.” Plaintiff was noted to be “fully active, able to carry on all predisease
activities without restrictions.” In a review of systems, plaintiff denied nausea, vomiting,
diarrhea, change in bowel habits, and GI bleeding. On exam he was found to have no
tenderness in his abdomen or extremities. His exam was normal. He weighed 186

18

pounds. He was diagnosed with thrombocytosis secondary to Crohn’s disease. His
platelet count was nearly within normal limits. Although plaintiff was assessed with
anemia, it was noted to be resolved. Dr. Schwartz recommended plaintiff begin taking
iron and folic acid. He also recommended plaintiff start taking calcium and Vitamin D.
On September 9, 2013, plaintiff saw Carey Vaughan, D.O. (Tr. at 258). He had
been out of prednisone for ten days. Plaintiff had gained 38 pounds with the
prednisone. Plaintiff’s physical exam was normal. His medications were refilled.
On December 6, 2013, plaintiff saw Eston Schwartz, M.D., at Goldschmidt
Cancer Center (Tr. at 240-243). “Since our last visit, he did see the gastroenterologist
at MU. They have him on Imuran, but he was not able to get in touch with them to refill
his prescriptions. He states that they did check his blood work and they never called
him back for refilling his Imuran. He thinks they want him to continue with that
medicine. Other than that, he is having continued fatigue. He does not work and does
not get out of his house. His wife states he rarely gets off the couch. He has no
shortness of breath, no nausea, vomiting or diarrhea. No significant pain except in his
abdomen.” During a review of systems, plaintiff reported that he was not on treatment
anymore for his gastrointestinal condition. He denied joint pain, and he had no
decreased range of motion in any joints. He had no tenderness or weakness in his
joints. Plaintiff weighed 185 pounds. Dr. Schwartz assessed, “Thrombocytosis
secondary to Crohn’s disease: Jason’s platelet count [10.0] is slightly lower than it was
last time, but stable. He is not on prednisone or Imuran. He is, however, having
symptoms of worsening Crohn’s with abdominal pain and diarrhea.” Plaintiff was also

19

assessed with anemia and Dr. Schwartz recommended plaintiff take iron supplements
and folic acid. Dr. Schwartz refilled plaintiff’s Imuran and recommended he follow up
with his GI doctor. With regard to plaintiff’s fatigue, Dr. Schwartz ordered blood work
which was normal. “This is likely inactivity and I have told him that he needs to start
becoming more active.”
On January 29, 2014, plaintiff saw Carey Vaughan, D.O., for a follow up (Tr. at
257). Plaintiff reported aching all over, abdominal pain, and vomiting two to three times
a week. Plaintiff’s weight had been stable. “May get Medicaid soon and has disability
hearing in March.” Plaintiff weighed 184 pounds. His exam was normal. He was
assessed with uncontrolled Crohn’s disease. Lab work was ordered.
C.

SUMMARY OF TESTIMONY
During the March 4, 2014, hearing, plaintiff testified; and Denise Weaver, a

vocational expert, testified at the request of the ALJ.
1.

Plaintiff’s testimony.
At the time of the hearing plaintiff was 28 years of age (Tr. at 29). Plaintiff was

living with his wife and three children, 11, 7 and almost 6 (Tr. at 29). Plaintiff has a high
school education; he can read, write, and do simple math (Tr. at 29-30).
Plaintiff last worked at Aloha Watersports, his own company, in 2012 (Tr. at 30).
Before that he was a dock manager at Aloha Boat (Tr. at 30). Because he was in the
boat business, he worked other jobs in the winter (Tr. at 30). He did maintenance at
Wal-Mart for a few months, mostly sweeping and doing janitorial work but also fixing
shelves or doors (Tr. at 30-31). He worked at Millstone as a hired hand for cleaning

20

sidewalks and “doing anything they needed done” (Tr. at 31). He worked as a
sandwich maker at Quiznos (Tr. at 31).
Plaintiff used to weigh 270 pounds before he got sick (Tr. at 31). He has Crohn’s
disease and short bowel syndrome (Tr. at 31). He also has arthritis related to Crohn’s
disease (Tr. at 31). Although he testified that he takes Imuran for Crohn’s, “some kind
of heart medication” (Atenolol), and doxylamine for upset stomach (Tr. at 31), later
when asked if he was taking any medication at all, he answered, “No, sir.” (Tr. at 33).
When asked about side effects, plaintiff said, “A lot of drowsiness, and not a lot of side
effects that I’m aware of, sir.” (Tr. at 33).
Plaintiff’s Crohn’s disease causes vomiting and diarrhea (Tr. at 32). He has a
fistula which bothers him a lot when he uses the bathroom (Tr. at 32). He uses the
restroom on average five times a day or more (Tr. at 32). After he eats, he has to use
the bathroom about 10 or 15 minutes later (Tr. at 32). After he uses the restroom, he
has to take a shower because the fistula drains (Tr. at 32). Sometimes he has
incontinence; that occurred twice the previous week (Tr. at 32). Plaintiff has arthritis in
his knees, elbows, shoulders, and lower back (Tr. at 32).
Plaintiff has not sought medical care in a while; “It’s so far of a drive from where
we’re at, that I was trying to get a closer doctor, to either Lake of the Ozarks or
Jefferson City. And insurance is a big deal, too. You know, there’s a lot of stuff they
would like to do, but haven’t done.” (Tr. at 34). He applied for Medicaid but was denied
because he made too much money (Tr. at 35). Plaintiff was on Prednisone for six
months at a time twice, but his doctor only puts him on Prednisone when he gets

21

“really, really bad” (Tr. at 34-35). Dr. Schwartz wanted plaintiff to go to St. Louis for a
possible PET scan because his blood work still shows that he has some sort of cancer
(Tr. at 35). His doctor is not sure where the cancer is, so that scan would help figure
out where the cancer could be (Tr. at 35-36).
Plaintiff has pain all the time, in his joints and on his left side (Tr. at 36). His
fistula also causes pain (Tr. at 36). The only thing he does to relieve pain is go to the
bathroom, and that is for the stomach cramps (Tr. at 36). Plaintiff only sleeps two or
three hours at a time -- he has night sweats and has to use the bathroom a lot during
the night (Tr. at 36).
Plaintiff can walk 100 to 200 feet before needing to sit down (Tr. at 32-33). He
can stand in one place for ten minutes at a time before needing to sit down (Tr. at 33).
He has a lot of discomfort sitting because of the fistula; he can sit for about 45 minutes
at a time (Tr. at 33).
Plaintiff can bathe and dress himself (Tr. at 33). He no longer drives (Tr. at 3334). He cooks when his wife is working, but only if he has to (Tr. at 34). He stays in
bed most of the day or sits on the couch (Tr. at 34). He watches television, usually
situation comedies (Tr. at 34).
2.

Vocational expert testimony.
Vocational expert Denise Weaver testified at the request of the Administrative

Law Judge. Plaintiff’s past relevant work at Aloha Watersports is characterized as
manager, hotel recreational facilities which includes marinas and water sport type

22

facilities (Tr. at 38). The position is DOT 187.167-122, light, with an SVP of 723 (Tr. at
38). He also worked as a dock manager which was described as delivering boats to
customers (Tr. at 38). The position is characterized as boat rigger, DOT 806.464-010,
medium, with an SVP of 4 (Tr. at 38). His other jobs are characterized as janitor, DOT
382,664-010, medium, with an SVP of 3, and sandwich maker, DOT 317.664-010,
medium, with an SVP of 2 (Tr. at 38).
The first hypothetical involved a person able to do light work with a sit/stand
option allowing the person to alternate sitting and standing at will provided the person is
not off task by 10% of the work period. The person could occasionally climb ladders,
ropes, scaffolds, ramps or stairs; stoop; crouch; kneel or crawl. The person must avoid
all use of hazardous machinery and all exposure to unprotected heights. Due to fatigue
and pain, the person could only perform simple (SVP level 1 or 2), routine and repetitive
tasks (Tr. at 38-39). The vocational expert testified that such a person could not
perform any of plaintiff’s past relevant work (Tr. at 39). Such a person could, however,
work as a garment sorter, DOT 222.687-014, light, with an SVP of 2. There are 27,500
in the country, 715 in Missouri (Tr. at 39). The person could be a mail clerk, DOT
209.687-026, light with an SVP of 2. There are 51,250 in the country and 1,890 in
23

SVP (specific vocational preparation) refers to the typical length of training required
to perform a job.
SVP 1 - Short demonstration only
SVP 2 - Anything beyond short demonstration up to and including 1 month
SVP 3 - Over 1 month up to and including 3 months
SVP 4 - Over 3 months up to and including 6 months
SVP 5 - Over 6 months up to and including 1 year
SVP 6 - Over 1 year up to and including 2 years
SVP 7 - Over 2 years up to and including 4 years

23

Missouri (Tr. at 39-40). The person could work as a folding-machine operator in a
clerical environment, DOT 208.685-014, light, with an SVP of 2. There are 75,500 jobs
in the nation and 1,510 in Missouri (Tr. at 40).
The second hypothetical was the same as the first except the person would need
two or more unscheduled or unexcused breaks in a workday (Tr. at 40). Such a
necessity may “cause a problem with that individual’s job” (Tr. at 40).
If the person were absent two or more times a month, he likely would not be
retained (Tr. at 40).
V.

FINDINGS OF THE ALJ
Administrative Law Judge Raymond Souza entered his opinion on March 27,

2014 (Tr. at 12-22). Plaintiff’s last insured date was June 30, 2014 (Tr. at 14).
Step one. Plaintiff has not engaged in substantial gainful activity since his
amended alleged onset date (Tr. at 14).
Step two. Plaintiff has the following severe impairments: Crohn’s disease, short
bowel syndrome, irritable bowel syndrome, rectal fistula, ulcerative colitis, and
patellofemoral syndrome (Tr. at 14).
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr.
at 14-15).
Step four. Plaintiff retains the residual functional capacity to perform light work
except he must be able to alternate between sitting and standing at will provided he is
not off task for more than 10% of the work period; he can occasionally climb ladders,
ropes, scaffolds, ramps or stairs; stoop; crouch; kneel; or crawl. He must avoid all

24

exposure to hazardous moving machinery and unprotected heights. He is limited to
simple (SVP 1 or 2), routine, repetitive tasks due to fatigue and pain (Tr. at 15). With
this residual functional capacity, plaintiff is unable to perform his past relevant work as a
hotel manager, boat rigger, janitor, or sandwich maker (Tr. at 20).
Step five. Plaintiff is capable of working as garment sorter, mail clerk, or folding
machine operator, all of which are available in significant numbers in the national
economy (Tr. at 21). Therefore plaintiff is not disabled (Tr. at 21).
VI.

CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that plaintiff’s testimony was not

credible.
The ALJ did not mention that Plaintiff used the bathroom five times a day
and had to shower each time due to the fistula, that he suffered from
incontinence on average two times a week or that he wasn’t able to drive.
The ALJ further stated that Plaintiff had not received the type of medical
treatment one would expect for a disabled individual and that treatment had
been successful in relieving his symptoms and stabilizing his condition. Plaintiff
received consistent medical treatment which was remarkable for an individual
without medical insurance.
ALJ’s decision also mentioned that Plaintiff had not proven that he had
explored all possible resources in order to obtain medical services. There is
nothing to support that there were resources available for medical services in the
area Plaintiff resides. To discount Plaintiff’s credibility based on conjecture is
unfounded.
(Plaintiff’s brief, p. 8).
The credibility of a plaintiff’s subjective testimony is primarily for the
Commissioner to decide, not the courts. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir.
1988); Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). If there are

25

inconsistencies in the record as a whole, the ALJ may discount subjective complaints.
Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999); McClees v. Shalala, 2 F.3d 301, 303
(8th Cir. 1993). The ALJ, however, must make express credibility determinations and
set forth the inconsistencies which led to his or her conclusions. Hall v. Chater, 62 F.3d
220, 223 (8th Cir. 1995); Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992). If an
ALJ explicitly discredits testimony and gives legally sufficient reasons for doing so, the
court will defer to the ALJ’s judgment unless it is not supported by substantial evidence
on the record as a whole. Robinson v. Sullivan, 956 F.2d at 841.
In this case, I find that the ALJ’s decision to discredit plaintiff’s subjective
complaints is supported by substantial evidence. Subjective complaints may not be
evaluated solely on the basis of objective medical evidence or personal observations by
the ALJ. In determining credibility, consideration must be given to all relevant factors,
including plaintiff’s prior work record and observations by third parties and treating and
examining physicians relating to such matters as plaintiff’s daily activities; the duration,
frequency, and intensity of the symptoms; precipitating and aggravating factors;
dosage, effectiveness, and side effects of medication; and functional restrictions.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Social Security Ruling 96-7p
encompasses the same factors as those enumerated in the Polaski opinion, and
additionally states that the following factors should be considered: Treatment, other
than medication, the individual receives or has received for relief of pain or other
symptoms; and any measures other than treatment the individual uses or has used to

26

relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board).
The specific reasons listed by the ALJ for discrediting plaintiff’s subjective
complaints of disability are as follows:
The claimant’s medical record does reflect treatment and some supportive
diagnostic testing which reflects that the claimant’s alleged conditions are
genuine but the objective medical evidence does not support . . . the claimant’s
subjective complaints regarding the severity, frequency, or residual effects of his
digestive disorder. The record reflects that the claimant was diagnosed with
Crohn’s disease and a rectal fistula in 2008 and improved with treatment such
that he discontinued his medications until symptoms reoccurred in July 2012. . . .
In September 2012, the claimant reported he has been doing better since he
was put on steroids. . . . In December 2012 [he] was seen by Jack Bragg, D.O.,
a gastroenterologist. . . where he reported some improvement in symptoms but
continued tiredness. . . . At a January 2013 follow up with Dr. Bragg it was noted
that the claimant did not want to start biologics, was only somewhat compliant
with his prescribed medication, and does not use his rectal suppositories as
recommended, but had improved Crohn’s colitis and was weaned off
prednisone. The claimant was referred to a specialist for the treatment of his
rectal fistula and possible abscesses but did not keep that appointment. At a
February 2013 follow up with Dr. Bragg the claimant reported his bowel function
was unchanged and he was not having any fevers or abdominal pain. At a
March 2013 visit . . . the claimant reported he was having two to three soft bowel
movements a day . . . [and] improved nausea and no vomiting. Dr. Hammad
noted that the claimant had previously required a course of prednisone for the
acute flare up of symptoms but did not require any additional medication to
control his colitis and that his fistula was in remission. The claimant was seen by
. . . a rheumatologist in April 2013 for his reported joint pain but his physical
examination demonstrated [only] some knee crepitus with anterior tenderness
but no swollen or tender joints, no synovitis of any joints, range of motion of all
joints within normal limits, normal muscle strength, and full extremity strength. . .
. [Recommended] knee x-rays were not performed. In May 2013, the claimant
reported his Crohn’s disease was worsening and Imuran was added. . . . After
just four weeks of using Imuran, the claimant reported that his bowel habits and
abdominal pains had improved. . . . In August 2013. . . the claimant denied any
abdominal pain, diarrhea, or hematochezia and reported he was tolerating all
kinds of food very well. The record does not reflect any subsequent
gastroenterologist treatment. In September 2013, the claimant reported to his
hematologist that he was feeling good, gaining weight, more active, and more

27

energetic. . . . At a follow up with his hematologist, he reported continued fatigue
but he had no nausea, vomiting or diarrhea. It was also noted that the claimant
had not been taking his Imuran. . . . However, he reported to his primary care
physician that he was vomiting and having diarrhea. . . . [W]hile supporting the
existence of these impairments, the objective medical evidence does not support
the claimant’s subjective allegations regarding the effects of those impairments
on his functioning. . . .
The claimant’s self-reported activities of daily living are inconsistent with his
allegations of disability. The claimant reported the only problems with personal
care are that he bathes more and uses the toilet all the time. The claimant also
reported that he could prepare meals, launder, care for his four-year-old, care for
his dogs, do simple tasks around the house, do yard work, go outside, ride in a
car, play guitar, and play video games. The claimant testified he can dress and
bathe himself and on a typical day he sits on the couch and watches situation
comedies on television. Based upon the totality of the evidence, the claimant
has engaged in substantial activities of daily living; the performance of which are
inconsistent with his complaints of disabling symptoms and limitations, but are
consistent with the determined residual functional capacity.
A review of the claimant’s work history shows that the claimant worked only
sporadically with poor earnings prior to the alleged disability onset date, which
raises a question as to whether the claimant’s continuing unemployment is
actually due to medical impairments. Although the claimant’s work history is not
a determinative factor, his sporadic work and poor earnings do not enhance the
credibility of his allegations.
The claimant has not generally received the type of medical treatment one would
expect for a disabled individual. The record reveals that the claimant has
received specialist treatment, which certainly suggests that the symptoms were
genuine. While that fact would normally weigh in the claimant’s favor, it is offset
by the fact that the record reflects that the treatment was generally successful in
relieving the symptoms and stabilizing the claimant’s condition. Additionally,
although the claimant has received some treatment for the allegedly disabling
impairments, that treatment has been essentially routine or conservative in
nature. Moreover, the claimant’s treatment for his severe impairments has
consisted of essentially only prescription medications and the record does not
reflect escalating treatment modalities, such as increased frequency of
treatment, pain management, emergency room visits, inpatient hospitalization, or
surgery to alleviate the claimant’s alleged symptoms, which suggests the
claimant’s symptoms are not as severe as alleged or that the conservative
treatment has been relatively effective at controlling his symptoms. The claimant
also testified that he has not received further medical treatment due to a lack of

28

medical insurance benefits. However, an inability to afford medical treatment
does not equate to a finding of disability. Furthermore, there is no evidence in
this record showing that the claimant explored all possible resources, (e.g.,
clinical, charitable and public assistance agencies, etc.) in order to obtain
medical services, as required by SSR 82-59.24
(Tr. at 16-19).
Plaintiff stated he had problems with vomiting and diarrhea. His fistula drains,
requiring him to shower five times a day after using the bathroom. He suffers from
incontinence twice a week. Plaintiff stated he had arthritis in his joints, including his
knees, elbows, shoulders, and lower back area. He thought he could walk 100 feet and
stand for 10 minutes. Plaintiff had discomfort with his fistula so he could only sit for 45
minutes. Plaintiff stated he had drowsiness as a side effect of his medication but he
was not currently taking any medications. He spends most of his day watching
television.
Joint pains. Plaintiff’s joint pains required nothing more than a low dose of a
non-steroidal anti-inflammatory. Plaintiff never followed up on the recommended xrays, and none of his physical exams revealed anything abnormal beyond knee
crepitus. His range of motion was always normal, strength was always normal, and
every doctor to examine his joints noted no tenderness, no swelling, no weakness, no
fluid.

24

Justifiable cause for failure to follow prescribed treatment includes the following:
“The individual is unable to afford prescribed treatment which he or she is willing to
accept, but for which free community resources are unavailable. Although a free or
subsidized source of treatment is often available, the claim may be allowed where such
treatment is not reasonably available in the local community. All possible resources
(e.g., clinics, charitable and public assistance agencies, etc.), must be explored.”

29

Vomiting and diarrhea. According to the medical records, on December 4, 2012,
plaintiff reported that symptoms including vomiting and diarrhea began in July 2012. He
was put on medication and his symptoms improved. On February 19, 2013, plaintiff
denied vomiting and said his bowel function was unchanged. On March 21, 2013, he
reported some vomiting two weeks earlier due to the flu, but it had since resolved. He
reported only 2 to 3 soft bowels movements a day, not diarrhea. On May 1, 2013, he
reported some vomiting. He did not complain of diarrhea. On May 29, 2013, he denied
vomiting, and he reported having 2 to 3 solid stools per day -- not diarrhea. On
September 13, 2013, he denied vomiting and diarrhea. On December 6, 2013, he
denied vomiting and diarrhea. On January 29, 2014 -- his last medical record -- he
reported vomiting 2 to 3 times a week.
Therefore, according to plaintiff’s medical records, he was experiencing vomiting
in July and August 2012, March 2013 (due to the flu, not his impairments), May 2013,
and January 2014. He was experiencing diarrhea in July and August 2012 and
December 2013. At all other times during the 18 months of medical records, plaintiff
denied vomiting and diarrhea. This is inconsistent with his hearing testimony that
vomiting and diarrhea impact his daily life and his ability to sleep at night. It is also
inconsistent with an inability to perform any substantial gainful activity due to symptoms
of vomiting and diarrhea.
Fistula. Plaintiff complained of pain from his fistula in November 2012. The
following month he reported feces coming out of his rectal fistula. In January 2013, he
continued to have draining from his fistula. However, by February 2013, Dr. Bragg

30

noted that “fistulas are not draining”. In March 2013, Dr. Hammad indicated that
plaintiff’s fistula was in remission. Plaintiff denied any pain or discharge from the fistula.
There is no other mention of a fistula in any of plaintiff’s medical records. Therefore,
the symptoms from this condition lasted only a few months which is inconsistent with
plaintiff’s testimony that his fistula bothers him a lot and requires him to take a shower
multiple times a day after using the bathroom due to draining.
Incontinence. Plaintiff testified that he suffers from bowel incontinence twice a
week. Plaintiff never mentioned this condition to any of his doctors.
Although plaintiff testified that he did not seek medical treatment more frequently
due to cost and lack of insurance, one can reasonably assume that on those rare
occasions when he was able to see a doctor, he would have reported these disabling
symptoms had they been occurring. Furthermore, the record contains no evidence that
plaintiff was ever denied medical treatment due to financial reasons; and, as the ALJ
noted, there was no evidence in the record that showed plaintiff explored all possible
resources, such as clinics, charitable and public assistance agencies, etc. Without such
evidence, the failure to seek treatment is a relevant credibility factor. Goff v. Barnhart,
421 F.3d 785, 793 (8th Cir. 2005). Although plaintiff argues the ALJ improperly
considered this factor, the ALJ is entitled to consider plaintiff’s lack of treatment under
these circumstances when evaluating whether his symptoms were as severe as he
alleged.
Plaintiff argues that the ALJ did not consider the fact that plaintiff’s cannot drive.
However, the record establishes that plaintiff does not drive because he does not have

31

a driver’s license -- it was suspended (Tr. at 142, 148). This is not a limitation that is
related to his impairment and the ALJ was not required to consider it.
As long as substantial evidence in the record supports the ALJ’s findings, the
court may not reverse the decision even if the case could have been decided
differently. Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014). Here, I find that the
substantial evidence in the record as a whole supports the ALJ’s decision to find
plaintiff’s testimony not entirely credible, and the substantial evidence in the record as a
whole supports the ALJ’s residual functional capacity assessment.25
VII.

CONCLUSION
Based on all of the above, I find that the substantial evidence in the record as a

whole supports the ALJ’s finding that plaintiff is not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.

ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
September 6, 2016

25

In September 2013, plaintiff's treating doctor wrote that plaintiff was fully active,
able to carry on all pre-disease activities without restrictions. This was despite plaintiff
indicating he was trying to get disability, “due to the fact that he was not able to work for
so long.” Dr. Schwartz told plaintiff in December 2013 that his fatigue was likely due to
inactivity and he needed to start becoming more active.

32