Farmer v. Astrue

Filing 17

ORDER affirming decision of Commissioner re 3 SOCIAL SECURITY COMPLAINT filed by Jack Farmer. Signed on 8/26/2013 by Magistrate Judge Matt J. Whitworth. (Bode, Kay)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION

JACK FARMER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.

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No. 12-5086-SSA-CV-SW-MJW

ORDER
Plaintiff Jack Farmer seeks judicial review,1 of a final administrative decision denying
plaintiff disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and
Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381 et seq. Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial
review of a final decision of the Commissioner of the Social Security Administration under Title
II. Section 1631(c)(3) of the Act and 42 U.S.C. § 1383(c)(3) provide for judicial review to the
same extent as the Commissioner’s final determination under section 205.
The parties’ briefs are fully submitted, and an oral argument was held on August 20,
2013. The complete facts and arguments are presented in the parties’ briefs and will not be
repeated here.
Standard of Review
The Eighth Circuit has set forth the standard for the federal courts’ judicial review
of denial of benefits, as follows:
Our role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence on the record as a whole. Substantial evidence
is less than a preponderance, but is enough that a reasonable mind would find it
adequate to support the Commissioner’s conclusion. In determining whether
existing evidence is substantial, we consider evidence that detracts from the
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The parties have consented to the jurisdiction of the United States Magistrate Judge,
pursuant to the provisions of 28 U.S.C. § 636(c).

Commissioner’s decision as well as evidence that supports it. As long as
substantial evidence in the record supports the Commissioner’s decision, we may
not reverse it because substantial evidence exists in the record that would have
supported a contrary outcome or because we would have decided the case
differently.
Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006).
The claimant has the initial burden of establishing the existence of a disability as
defined by 42 U.S.C. § 423(d)(1). See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995).
To meet the statutory definition, "the claimant must show (1) that he has a medically
determinable physical or mental impairment which will either last for at least twelve
months or result in death, (2) that he is unable to engage in any substantial gainful
activity, and (3) that this inability is the result of his impairment." McMillian v.
Schweiker, 697 F.2d 215, 220 (8th Cir. 1983).
When reviewing the record to determine if there is substantial evidence to support
the administrative decision, the court considers the educational background, work history
and present age of the claimant; subjective complaints of pain or other impairments;
claimant’s description of physical activities and capabilities; the medical opinions given
by treating and examining physicians; the corroboration by third parties of claimant’s
impairments; and the testimony of vocational experts when based upon proper
hypothetical questions that fairly set forth the claimant’s impairments. McMillian, 697
F.2d at 221.
Discussion
Plaintiff Jack Farmer was born in October 1956. Plaintiff alleges disability due to vision
and hearing problems, arthritis, hernia, and mood disorder. A hearing was held before an
administrative law judge (ALJ) on March 18, 2011, with the ALJ issuing an unfavorable
decision. Plaintiff filed an appeal to the Appeals Council on May 2, 2011, and that request for
review was denied on June 22, 2012. Accordingly, the decision of the ALJ stands as the final
decision of the Commissioner.
The ALJ’s decision found that plaintiff suffered from the following severe impairments:
degenerative disease of the cervical and lumbar spine, history of right knee scope, hernia repair,
and mood disorder. The ALJ went on to determine that plaintiff’s impairments did not meet a
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Listing under 20 C.F.R. Part 404, Subpart P, Appendix 1, and that plaintiff retained the residual
functional capacity (RFC) to perform light work, except only frequent, not constant, bi-manual
overhead reaching and moderate limitations in social functioning. Based on the RFC and the
testimony of a vocational expert, the ALJ determined that plaintiff was capable of performing
past relevant work as a dishwasher and inventory clerk. Accordingly, the ALJ determined
plaintiff was not disabled as defined by the Social Security Act.
Plaintiff argues the ALJ erred in weighing the medical evidence and in determining
plaintiff’s RFC, in failure to conduct a proper credibility analysis, and in failure to compare
correctly the physical and mental requirements of plaintiff’s past work with the limitations of the
RFC. The Commissioner argues the record shows plaintiff’s mental impairments have stabilized
with treatment and the medical evidence fails to confirm the allegedly disabling nature of
plaintiff’s physical limitations. The Commissioner further argues the ALJ properly analyzed
plaintiff’s past relevant work based on plaintiff’s own testimony, and properly determined
plaintiff could perform it. The Commissioner argues substantial evidence supports the ALJ’s
decision.
Upon review, this Court finds the ALJ’s decision is supported by substantial evidence in
the record as a whole.
First, the ALJ did not err in consideration of the medical record. The ALJ properly
discussed the lack of objective evidence to support the severity of plaintiff’s alleged
impairments. A consultative physical examination was performed on November 21, 2009, which
revealed no evidence of vision or hearing problems as alleged. Plaintiff had 20/20 vision without
glasses and no apparent difficulty hearing. Plaintiff did have a small umbilical hernia noted, and
some right shoulder restrictions as a result of adhesive capsulitis, and some foot pain due to
Morton’s neuroma. It was opined by the medical consultant that with proper treatment, such as
physical therapy to restore range of motion in plaintiff’s shoulder, and surgery for plaintiff’s
foot, these impairments could be resolved in less than twelve months. The ALJ also properly
considered medical X-rays from 2010 which showed only mild degenerative changes, mild-tomoderate bone spurs and no acute findings. There was no error in the ALJ’s consideration of the
opinion of the consulting doctor, the objective medical tests, and plaintiff’s overall limited

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treatment for alleged physical impairments, in determining the severity of plaintiff’s alleged
physical impairments.
The ALJ also did not err in weighing the medical evidence as to plaintiff’s allegations of
mental problems. The ALJ gave valid basis for giving little weight to the opinions of Dr. Wilson
and Nurse Wilczynski. The ALJ noted Dr. Wilson’s medical source statement was completed
fourteen months after his only visit with plaintiff, and was inconsistent with the record as a
whole. An ALJ is entitled to discount the opinion of a treating physician when that opinion is
conclusory or inconsistent with the evidence of record. Samons v. Astrue, 497 F.3d 813, 819
(8th Cir. 2007).
As to Nurse Wilczynski, the ALJ properly explained that the opinions of nurse
practitioners are not given controlling weight. As a nurse practitioner, Nurse Wilczynski is not
considered an Aacceptable medical source@ under the Code of Federal Regulations, but rather, is
considered an Aother medical source.@ 20 C.F.R. ' 404.1513. As an Aother medical source,@ the
opinions of Nurse Wilczynski cannot establish the existence of a medically determinable
impairment. See section 404.1513 (defining Aacceptable medical sources@ and Aother medical
sources@). Further, the ALJ has more discretion and is permitted to consider any inconsistencies
found within the record when evaluating Aother medical sources.@ Raney v. Barnhart, 396 F.3d
1007, 1010 (8th Cir. 2005). See also Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007)
(discussing Aother medical sources@ and weight given to their opinions). Here, the ALJ discussed
the opinion of Nurse Wilczynski as inconsistent with the record as a whole, and noted the limited
time frame that Nurse Wilczynski saw plaintiff. The ALJ also properly noted that during this
limited time frame, plaintiff was dealing with situational life stressors, specifically the death of
his girlfriend. Situational stress does not support a permanent mental health disability.
Finally, the ALJ properly considered that the medical records show plaintiff’s mental
health symptoms were controlled by medication, see Collins ex rel. Williams v. Barnhart, 335
F.3d 726, 729-30 (8th Cir. 2003) (impairments that are controllable by medication do not support
a finding of total disability), and would continue to improve with sustained proper treatment.
The ALJ did not err in assessing plaintiff’s credibility. As set forth above, plaintiff
claimed disability due to hearing and vision loss among other impairments, but the record clearly
shows plaintiff has no vision or hearing impairments. Further, the ALJ properly noted the lack
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of objective medical evidence to support the severity of plaintiff’s alleged impairments. See
Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (an ALJ may determine that subjective
pain complaints are not credible in light of objective medical evidence to the contrary).
Credibility findings are for the ALJ to make in the first instance, and here, the ALJ gave good
reasons for doing so. 2 Accordingly, the ALJ’s decision is entitled to deference. Finch v. Astrue,
547 F.3d 933, 935-36 (8th Cir. 2008).
The ALJ did not err in determining plaintiff’s RFC. The residual functional capacity is
the most a claimant can do despite his physical and mental limitations. 20 C.F.R. § 416.945(a).
When determining the claimant’s RFC, the ALJ must consider all relevant evidence, but
ultimately the determination of the claimant’s RFC is a medical question. Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir. 2001). Here, the ALJ’s RFC properly relied on the medical evidence of
record and the record as a whole in determining plaintiff could do light work with some
limitations to account for his credible impairments.
The ALJ did not err in determining plaintiff could do his past relevant work. While the
Dictionary of Occupational Titles may define plaintiff’s past relevant work as medium work as it
is typically performed, the ALJ properly relied on plaintiff’s testimony at the hearing in
determining that plaintiff could do his past relevant work as it was actually performed.3 This is a
valid basis on which the ALJ can determine whether plaintiff could do his past relevant work. 20
C.F.R. §§ 404.1520(a)(4)(iv) and 416.920(a)(4)(iv); SSR 82-61 (defining past relevant work).
Moreover, at step four, the ALJ may, but is not required to, consider a vocational expert’s
testimony in determining whether a claimant can perform his past relevant work. See Flynn v.
Astrue, 513 F.3d 788, 792 (8th Cir. 2008). Here, the ALJ’s reliance on plaintiff’s own testimony
and work history report to define his past relevant work was sufficient to allow the ALJ to make
a determination as to plaintiff’s ability to return to his past relevant work. See SSR 82-62 (the
claimant is the primary source for vocational documentation and statements by the claimant
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Among other valid reasons, plaintiff’s poor work history supports the ALJ’s credibility
determination.
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Although the ALJ stated at the hearing that the plaintiff could perform his past jobs as
generally performed, his discussion of the details of plaintiff’s past jobs suggests that this was
simply a misstatement and the ALJ meant to state that plaintiff could do the specific jobs he held
in the past as actually performed. Moreover, the ALJ properly discussed the RFC as compared
to the demands of the specific jobs that plaintiff has held in the past.  
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regarding past relevant work are generally sufficient for determine the skill level, exertional
demands and nonexertional demands of such work).
To the extent that plaintiff’s past employment as a dishwasher might not have qualified as
past relevant work because he did not perform the job at the substantial-gainful-activity level,
this argument does not support reversal because the ALJ also determined that plaintiff could do
his past relevant work as an inventory clerk, to which there is no dispute that this job is past
relevant work.
Conclusion
There is substantial evidence in the record as a whole to support the ALJ’s decision that
plaintiff is not disabled as defined by the Social Security Act.
IT IS, THEREFORE, ORDERED that the decision of the Commissioner is affirmed.
Dated this 26th day of August, 2013, at Jefferson City, Missouri.

/s/

Matt J. Whitworth

MATT J. WHITWORTH
United States Magistrate Judge

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