Hudson v. Colvin

Filing 12

ORDER Affirming the Commissioner's Decision. Signed on 2/4/15 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
RYAN TYLER HUDSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 3:14-CV-5041-DGK-SSA

ORDER AFFIRMING THE COMMISSIONER’S DECISION
Plaintiff Ryan Hudson seeks judicial review of the Commissioner of Social Security’s
(“Commissioner”) determination that he was no longer entitled to disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Administrative Law Judge
(“ALJ”) found Plaintiff had multiple severe impairments, including history of renal failure,
kidney transplant, attention deficit disorder, and major depression, but he retained the residual
functional capacity (“RFC”) to perform his past relevant work as a line worker and surveillance
system monitor.
Because substantial evidence on the record as a whole supports the ALJ’s opinion, the
Commissioner’s cessation of benefits is AFFIRMED.
Factual and Procedural Background
A summary of the entire record is presented in the parties’ briefs and is repeated here
only to the extent necessary.
In September 2005, the Commissioner found Plaintiff was disabled due to renal failure.
Plaintiff began dialysis in September 2005 and received a kidney transplant in November 2006.
Plaintiff remained on disability insurance through September 2009, at which time it was ceased

following a trial work period. Benefits, however, were reinstated again in July 2010. Plaintiff
continued to receive benefits until January 19, 2012, when the Commissioner conducted a
continuing disability review1 and determined that Plaintiff’s medical condition had improved to
the point that he was no longer disabled.
Plaintiff appealed this decision to an ALJ, who affirmed the Commissioner’s decision.
Plaintiff then appealed to the Appeals Council. On appeal, Plaintiff submitted two new letters:
one from his treating physician Ahmed Aboul-Magd, M.D. (“Dr. Aboul”), and another from his
treating psychiatrist Willis Hoyt, D.O. (“Dr. Hoyt”). The Appeals Council denied review,
finding that the new evidence did not give a sufficient basis to overturn the ALJ’s decision. This
denial left the ALJ’s opinion as the Commissioner’s final decision. Plaintiff has exhausted all
administrative remedies and judicial review is now appropriate under 42 U.S.C. § 405(g).
Standard of Review
The Court’s review of a termination of disability benefits pursuant to the continuing
disability review process is limited to determining whether substantial evidence on the record as
a whole supports the ALJ’s decision. Dixon v. Barnhart, 324 F.3d 997, 1000 (8th Cir. 2003).
Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind
would find it sufficient to support the Commissioner’s decision. Buckner v. Astrue, 646 F.3d
549, 556 (8th Cir. 2011). In making this assessment, the court considers evidence that detracts
from the Commissioner’s decision, as well as evidence that supports it. McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000). The court must “defer heavily” to the Commissioner’s findings
and conclusions. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The court may reverse the
Commissioner’s decision only if it falls outside of the available zone of choice, and a decision is
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The Commissioner periodically reviews whether benefit recipients are still disabled. See 20 C.F.R. § 404.1594.
This is commonly referred to as the “continuing disability review process.” Dixon v. Barnhart, 324 F.3d 997, 1000
(8th Cir. 2003).

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not outside this zone simply because the court might have decided the case differently were it the
initial finder of fact. Buckner, 646 F.3d at 556.
Analysis
In determining whether a claimant has medically improved to the point that he is no
longer disabled, that is, that he can now perform substantial gainful activity, see 42 U.S.C.
423(f)(1), the Commissioner follows an eight-step sequential evaluation process.2 See Delph v.
Astrue, 538 F.3d 940, 945 (8th Cir. 2008). Five of the eight steps, including formulation of the
RFC, mirror the sequential process used in the initial disability determination. Id.
Here, Plaintiff solely challenges the RFC formulation,3 arguing that: (1) the ALJ erred by
improperly discrediting his credibility and failing to rely on medical evidence; and (2) even
assuming the initial RFC determination was supported by substantial evidence, it no longer
enjoys such support in light of the new evidence submitted to the Appeals Council. The Court
addresses each argument in turn.

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“[T]he Commissioner must determine the following: (1) whether the claimant is currently engaging in substantial
gainful activity, (2) if not, whether the disability continues because the claimant’s impairments meet or equal the
severity of a listed impairment, (3) whether there has been a medical improvement, (4) if there has been a medical
improvement, whether it is related to the claimant’s ability to work, (5) if there has been no medical improvement or
if the medical improvement is not related to the claimant’s ability to work, whether any exception to medical
improvement applies, (6) if there is medical improvement and it is shown to be related to the claimant’s ability to
work, whether all of the claimant’s current impairments in combination are severe, (7) if the current impairment or
combination of impairments is severe, whether the claimant has the residual functional capacity to perform any of
his past relevant work activity, and (8) if the claimant is unable to do work performed in the past, whether the
claimant can perform other work.” Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008) (citing 20 C.F.R. §
404.1594(f)).
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Plaintiff also recites the standard for whether there has been medical improvement, but he fails to provide an
analysis of how the ALJ’s opinion fails to meet this standard. Because Plaintiff did not develop this argument, the
Court will not consider it. See Whited v. Colvin, No. C-13-4039-MWB, 2014 WL 1571321, at *2 (N.D. Iowa April
18, 2014) (discussing how the failure to specifically object to a magistrate judge’s decision is akin to making no
objection at all).

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I. Substantial evidence supports the ALJ’s RFC formulation.
A. The ALJ thoroughly considered, and adequately refuted, Plaintiff’s subjective
allegations.
Citing to Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984), Plaintiff contends that the
ALJ’s credibility analysis was deficient because he cursorily stated, without any support or
explanation, that Plaintiff’s allegations were less than credible.
This is simply not true. The ALJ conducted an extraordinarily thorough credibility
analysis with citation to, and analysis of, supporting record evidence. R. at 16-20. The ALJ
found that Plaintiff’s allegations of disabling limitations were inconsistent with his daily
activities, prior statements to medical professionals, and objective medical evidence. R. at 1620. For instance, although Plaintiff alleged that he suffered from debilitating diarrhea and
required bathroom breaks every thirty to forty minutes, R. at 20, 36, 38, the medical records do
not support such allegations. R. at 374, 376, 399, 499, 556, 558, 574, 589, 614, 729. In fact, the
majority of records not only fail to mention such issues, they generally show that Plaintiff was
doing well during many doctor visits. R. at 471, 509, 512, 517, 519, 613, 617. And although
Plaintiff complained of frequent urination to medical providers, this occurred at nighttime rather
than during working hours and never amounted to the level of frequency he claimed during the
hearing. R. at 556, 558, 574, 589, 729.
These and the other noted inconsistencies find support in the record and supply a legally
valid basis to discount Plaintiff’s credibility. R. at 14, 19, 20, 36, 38-40, 47, 244, 256, 271-74,
346-51, 374, 376, 399, 499, 509, 512, 517, 519, 556, 558, 561, 574, 576, 588-89, 613, 617, 665,
729, 731, 738; see McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (holding the ALJ may
consider daily activities as one factor in the credibility analysis); Rogers v. Astrue, 479 F. App’x
22, 23 (8th Cir. 2012) (holding the ALJ may discount credibility in part on inconsistent

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statements made by the claimant); Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003)
(holding the ALJ may discount subjective complaints that conflict with medical records).
And contrary to Plaintiff’s intimations, the ALJ did not solely rely on these
inconsistencies in evaluating his allegations.

The ALJ also noted that Plaintiff’s formerly

disabling kidney condition was now fairly well-controlled by medication, and he only received
conservative, sporadic treatment for his mild psychological impairments. R. at 471, 477-78, 485,
504-05, 509, 512, 516-17, 591-92, 597, 613, 750. Both of these findings provide a sound basis
to discredit Plaintiff’s credibility. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001)
(holding ALJ may consider record of conservative treatment in evaluating credibility); Comstock
v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996) (holding ALJ may discount credibility if claimant
fails to regularly pursue medical treatment). The ALJ also properly found that Plaintiff engaged
in part-time work and sought other work during the disability period, which detracts somewhat
from his credibility. R. at 35-36, 225, 474, 509, 589, 606-08, 618, 622; see Dunahoo v. Apfel,
241 F.3d 1033, 1039 (8th Cir. 2001) (“Seeking work and working at a job while applying for
benefits, are activities inconsistent with complaints of disabling pain.”).
Considering the totality of these supported findings, substantial evidence supports the
ALJ’s credibility analysis.
B. The ALJ did rely upon medical evidence in formulating the RFC.
Similarly unavailing is Plaintiff’s contention that the ALJ failed to rely on any medical
evidence in formulating the RFC. The ALJ’s five-page RFC analysis is replete with citation to
medical evidence, including treatment notes, test results, and medical opinion evidence. R. at
15-21. In fact, the ALJ analyzed and incorporated some of the limitations assessed in the
opinions of Donald Wantuck, M.D., and Eduardo Ulloa, M.D. Thus, there is no merit to
Plaintiff’s argument.
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II. Even considering the letters from Plaintiff’s treating physicians, substantial
evidence supports the ALJ’s determination.
Plaintiff next claims that once the Court considers evidence submitted to the Appeals
Council, the ALJ’s RFC formulation is no longer supported by substantial evidence.

In

particular, the ALJ claims that letters from Dr. Aboul and Dr. Hoyt undermine many of the
ALJ’s findings, thus throwing the RFC into question.
Dr. Aboul, who treated Plaintiff’s kidney condition for several years prior to and after the
transplant, opined that Plaintiff’s immunosuppressant medication caused him to have severe
diarrhea.

R. at 770.

Dr. Aboul alleged that this issue required Plaintiff to take frequent

bathroom breaks, thus causing former employers to fire him. R. at 770. Dr. Aboul concluded
that this side effect would continue to prevent Plaintiff from working in the future. R. at 770.
Dr. Hoyt, who provided mental health treatment to Plaintiff over several years, wrote a letter
stating that he may have been mistaken when he frequently documented Plaintiff’s ability to
bench press 405 pounds. R. at 768. Plaintiff submitted both letters to the Appeals Council, but it
denied review, finding that this evidence “did not provide a basis for changing the [ALJ’s]
decision.” R. at 2.
When the Appeals Council denies review despite new and material evidence, the Court
must determine whether in light of the new evidence the ALJ’s decision is still supported by
substantial evidence on the record as a whole. See Perks v. Astrue, 687 F.3d 1086, 1093 (8th Cir.
2012). “To be ‘new,’ evidence must be more than merely cumulative of other evidence in the
record.” Id. (quoting Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000)). “Evidence is
‘material’ if it is ‘relevant to claimant’s condition for the time period for which benefits were
denied.’” Roberson v. Astrue, 481 F.3d 1020, 1026 (8th Cir. 2007) (quoting Bergmann, 207 F.3d
at 1069).

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Here, even assuming that these letters qualify as “new, material” evidence, they do not
supply a sufficient basis to set aside the ALJ’s decision. With respect to Dr. Hoyt’s letter, it is
nothing more than a minor correction to his treatment notes.

On several occasions after

Plaintiff’s transplant, Dr. Hoyt documented that Plaintiff bench pressed between 330 and 425
pounds, which the ALJ cited in his decision. R. at 18, 558, 561, 574, 576, 661, 666, 721, 735,
739, 768. But even assuming these were misstatements, this revelation does not undermine the
ALJ’s ultimate disability determination. Although the ALJ relied on these notes for credibility
purposes, Plaintiff’s weight lifting was only one of the many inconsistencies, as noted above,
that supported the ALJ’s credibility analysis. Even taking away this evidence, there still remains
sufficient evidence supporting the ALJ’s credibility determination and his disability decision as a
whole. Thus, the Court cannot conclude that Dr. Hoyt’s letter would alter the ALJ’s conclusion.
Similarly, Dr. Aboul’s letter, although more probative than Dr. Hoyt’s, also fails to
supply a sufficient basis to overturn the ALJ’s decision. Plaintiff’s argument is premised on the
assumption that Dr. Aboul’s letter, as an opinion from a treating physician, is entitled to
substantial, if not controlling, weight. But that is not the case. To be entitled to such deference,
Dr. Aboul’s opinion must be well supported by, and not inconsistent with, other substantial
evidence in the record. Myers v. Colvin, 721 F.3d 521, 524 (8th Cir. 2013) (citing 20 C.F.R §
404.1527(c)(2)). Moreover, it must not be inconsistent with, or unsupported by, the physician’s
own treatment notes. Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009). Dr. Aboul’s
opinion does not satisfy either of these standards.
Dr. Aboul opines that Plaintiff’s immunosuppressant medication causes frequent
bathroom breaks, mostly arising from bouts of diarrhea. R. at 770. The record as a whole,
however, belies this assertion. Admittedly, Plaintiff has consistently asserted throughout the
disability process that he frequently uses the restroom due to his transplant and attendant
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medication. But such allegations are not borne out by the treatment notes from numerous
medical providers. While there are some notes that Plaintiff dealt with quite serious diarrhea at
times, R. at 477, 499, the frequency and seriousness of these episodes decreased over time. R. at
471-499. For instance, treatment notes from Plaintiff’s periodic checkups at the Mayo Clinic
show that although he suffered from serious diarrhea in 2009, he subsequently suffered only mild
diarrhea that was alleviated with over-the-counter medications such as Imodium. R. at 471-499.
Treatment notes from other medical providers show that in August 2012 Plaintiff was not
exhibiting any stomach problems, let alone serious ones. R. at 709. If Plaintiff’s issues were as
frequent and disabling as Dr. Aboul’s letter suggests, then one would expect to find more
observations in the record demonstrating such.
Dr. Aboul’s opinion is also arguably inconsistent with, or unsupported by, his treatment
notes.

When read as a whole, Dr. Aboul’s notes following Plaintiff’s transplant are not

indicative of frequent, severe stomach problems. R. at 605-625, 717-19. For the most part, they
contain findings about Plaintiff’s mental condition, and even show that Plaintiff was “feeling
well” during some visits. R. at 605-625. On two visits, however, Plaintiff did complain of
“loose stools,” “stomach upset,” and “diarrhea.” R. at 677, 717. During both sessions, Dr.
Aboul simply advised Plaintiff to take Imodium and increase fluid intake. R. at 677, 717.
Granted, these notes corroborate the existence of diarrhea, but the lack of extensive
documentation undermines Dr. Aboul’s conclusion that it is disabling.

Given this lack of

consistency and support, Dr. Aboul’s opinion is readily discountable. See Perks, 687 F.3d at
1093.
Dr. Aboul’s opinion would also not impact the outcome for several other reasons. First,
besides using the vague term “frequently,” it does not specify how often Plaintiff experiences
disabling stomach problems. R. at 770. Opinions that lack specificity on crucial issues are of
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little value. See Wildman v. Astrue, 596 F.3d 959, 965 (8th Cir. 2010). Second, and more
importantly, Dr. Aboul’s opinion, including the reasons for Plaintiff’s prior terminations, seems
to be primarily based on subjective complaints. R. at 770. Such reliance is troublesome given
the fact that the ALJ found Plaintiff’s allegations less than credible. See Woolf v. Shalala, 3 F.3d
1210, 1214 (8th Cir. 1993) (holding ALJ properly discounted treating physician’s opinion for
overreliance on claimant’s subjective complaints). For all of these reasons, Dr. Aboul’s opinion
is not entitled to controlling, or even significant, weight. Therefore, the Court cannot conclude
that it deprives the ALJ’s decision of substantial record support.
Because neither doctor’s opinion would alter the outcome, the Court finds that their
submission to the Appeals Council does not require remand.
Conclusion
Since substantial evidence on the record as a whole supports the ALJ’s decision, the
Commissioner’s cessation of benefits is AFFIRMED.
IT IS SO ORDERED.
Date: February 4, 2015

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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