Pennington v. Colvin
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 5/2/14 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
MICHAEL A. PENNINGTON,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Michael Pennington 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 (1) finding plaintiff’s subjective
allegations of disabling symptoms not credible, (2) failing to incorporate mental limitations in
the residual functional capacity, (3) finding that plaintiff had past relevant work as a retail
sales clerk, and (4) failing to incorporate all of plaintiff’s impairments in the hypothetical. 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.
On August 19, 2010, plaintiff applied for disability benefits alleging that he had been
disabled since March 17, 2005. Plaintiff’s disability stems from a rotator cuff injury, hip
injury, chronic pain, hypertension, restless leg syndrome, chronic constipation, sleep apnea,
and depression. Plaintiff’s application was denied on December 2, 2010. On January 10,
2012, a hearing was held before an Administrative Law Judge. On February 8, 2012, the ALJ
found that plaintiff was not under a “disability” as defined in the Act. On February 6, 2013,
the Appeals Council denied plaintiff’s request for review. Therefore, the decision of the ALJ
stands as the final decision of the Commissioner.
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 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).
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:
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
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.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
The record consists of the testimony of plaintiff, medical expert Dr. Steven Gerber, and
vocational expert Kelly Winn-Boaitey, in addition to documentary evidence admitted at the
The record contains the following administrative reports:
The record shows that plaintiff earned the following income from 1975 through 2011:
(Tr. at 115-116, 118).
In a Function Report dated October 20, 2010, plaintiff reported that he lives in a house
with his companion (Tr. at 127-134). He described his day as follows:
Get dressed or take a hot bath to help loosen myself up. Sit on my deck with our cats,
do laundry, feed the cats, clean litter box, do any shopping for food, and/or personal
items, read for a while, watch some TV, visit with my roomate [sic] when she gets home
from work, fix my dinner, watch some more TV before bed.
Plaintiff can mow, but it takes him a half a day to do his yard and he has to take a lot of
breaks. When plaintiff goes out, he drives a car and can go out alone. He shops in stores for
food and clothing once or twice a week for 30 to 60 minutes at a time. He goes to Concerts at
the Park in Blue Springs, Missouri, on a regular basis.
Plaintiff’s condition affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel,
climb stairs, and complete tasks (Tr. at 132). His condition does not affect his ability to
remember, to concentrate, to understand, to follow instructions, or to use his hands (Tr. at
132). He can pay attention for several hours.
Your Missouri Courts Case Search
Plaintiff pled guilty to involuntary manslaughter - vehicular - intoxicated, a felony (Tr.
at 159). The guilty plea was entered on September 19, 1998. He was sentenced to five years
in prison, the execution of which was suspended, he served 120 days shock incarceration, and
he was released on two years of probation.
Stipulation of Compromise Settlement - Worker’s Compensation
Plaintiff’s stipulation for compromise settlement is a part of the record and states that
plaintiff’s employer and insurer had paid $26,048 in medical expenses and $19,296.56 in
temporary disability related to plaintiff’s shoulder condition, and the worker’s compensation
settlement was for an additional lump sum of $18,481.41 (Tr. at 110). This document is dated
May 10, 2006. Plaintiff also received a lump sum payment of $3,034.97 from the second
injury fund (Tr. at 114). His total compensation for the shoulder condition aggravation was
$47,564.38 (of which he testified his attorney got about $6,000) along with $26,048 in
SUMMARY OF MEDICAL RECORDS
Plaintiff’s alleged onset date is March 17, 2005, the date of his shoulder surgery.
On March 25, 2005, plaintiff saw Anne Rosenthal, M.D., at Rockhill Orthopaedics for a
follow up on his right rotator cuff repair1 on March 17, 2005 (Tr. at 227). Plaintiff said his
arm felt good, he had minimal pain and no complaints. She noted that plaintiff was doing well
and started him on a formal therapy program.
The shoulder is made up of three bones: the upper arm bone (humerus), the shoulder blade
(scapula), and the collarbone (clavicle). The shoulder is a ball-and-socket joint: The ball, or
head, of the upper arm bone fits into a shallow socket in the shoulder blade. The arm is kept in
the shoulder socket by the rotator cuff. The rotator cuff is a network of four muscles that come
together as tendons to form a covering around the head of the humerus. The rotator cuff
attaches the humerus to the shoulder blade and helps to lift and rotate the arm. There is a
lubricating sac called a bursa between the rotator cuff and the bone on top of the shoulder
(acromion). The bursa allows the rotator cuff tendons to glide freely when the arm is moved.
When the rotator cuff tendons are injured or damaged, this bursa can also become inflamed
On March 28, 2005, plaintiff saw Dr. Rosenthal for suture removal (Tr. at 226).
Plaintiff said his shoulder felt good, he had no complaints, and therapy was progressing well.
She noted that plaintiff was doing well. She told him not to use his right hand or arm, not to
operate machinery, and not to drive, and to come back for a follow up in four weeks.
On May 3, 2005, plaintiff saw Dr. Rosenthal for a follow up (Tr. at 224-225). Plaintiff
had no complaints and said his arm felt much better since the surgery. She noted that plaintiff
was making good progress with therapy. “The therapist understands he had a very large tear
and I want to proceed slowly with strengthening.” Plaintiff was noted to be doing well, was
told not to use his right arm or hand at work, and to return in four weeks.
On May 31, 2005, plaintiff saw Dr. Rosenthal for a follow up (Tr. at 223). Plaintiff had
no new complaints. “The shoulder feels much better. He feels he’s doing very well.” Plaintiff
was told not to use his right hand or arm until June 9, 2005, and then he had a one-pound
Plaintiff was released to return to work on August 15, 2005 (Tr. at 196).
The following day, on August 16, 2005, plaintiff saw Gregory Boyd, D.O., due to arm
pain (Tr. at 196). Plaintiff was performing a sit-down job but had been asked to “throw”
casings up which required him to move his arms above his head. That caused pain in his right
shoulder. Plaintiff also reported left hip pain due to prolonged sitting, and he reported
insomnia, depression, and occasional discomfort and bulging in the left inguinal region.
Plaintiff was noted to be anxious but “almost cheerful at times”. Plaintiff was assessed with
right shoulder and right hip pain,2 left inguinal hernia,3 depression, insomnia, and elevated
blood pressure. Plaintiff was prescribed Cymbalta, an antidepressant, and Ambien, a
tranquilizer used to treat insomnia. “I did write a note basically saying that I am not able to
complete his disability evaluation.” Dr. Boyd referred plaintiff back to his orthopedic surgeon
for that. It is unclear why plaintiff would ask his primary care physician to complete a
disability evaluation the day after his orthopedic surgeon released him to return to work.
On September 6, 2005, plaintiff saw Dr. Rosenthal (Tr. at 219-220). Plaintiff said his
shoulder was “no better at this time” although he did say it felt better than before surgery.
“This is the first time I am hearing about this.” Plaintiff told Dr. Rosenthal that he went back to
work after she released him, but he was only able to work for six hours and then had to leave
because of the pain. Plaintiff said he wanted to go back to work as a tool setter but his
company would not allow him to do that. Dr. Rosenthal noted that plaintiff was nontender to
palpation throughout the shoulder, and his rotator cuff strength was normal. “The job
description that I have been given does not match what he describes that his current job
entails. I released him to full duty work because he was able to perform the job that was
described in the letter sent on 7/1/05. . . . I would not want him returning to a position where
Although the assessment was right hip pain, the notes reflect that plaintiff had complained
of pain in his left hip and had had a hip replacement on the left. Dr. Boyd found tenderness
with palpation of the left hip. Therefore, I assume the diagnosis should have been left hip pain,
not right hip pain.
“An inguinal hernia occurs when soft tissue -- usually part of the membrane lining the
abdominal cavity (omentum) or part of the intestine -- protrudes through a weak point in the
abdominal muscles. The resulting bulge can be painful, especially when you cough, bend over
or lift a heavy object. An inguinal hernia isn't necessarily dangerous by itself. It doesn't get
better or go away on its own, however, and it can lead to life-threatening complications. For
this reason, your doctor is likely to recommend surgery to fix an inguinal hernia that's painful
or becoming larger. Inguinal hernia repair is a common surgical procedure.”
he has to use his right arm at or above shoulder level continuously. . . . . We have requested
job description.” Dr. Rosenthal restricted plaintiff to work that does not involve use of the
right arm at or above shoulder level constantly.
On October 10, 2005, plaintiff saw Sidney Devins, M.D., a pulmonary specialist, with
complaints of insomnia, restless legs, and sleep apnea after having been referred by Dr. Boyd
(Tr. at 217-218). Plaintiff complained of feeling unrefreshed in the morning, being under a
significant amount of mood swings and emotional distress, and as a result was unable to
concentrate. Plaintiff was on worker’s compensation. He continued to smoke and had been
smoking for 25 years. Plaintiff had a history of illicit drug use but said he had not used drugs
in years. Plaintiff was taking Cymbalta for depression and Ultracet for pain. “He took Lunesta
for the last 10 days and it helped him sleep tremendously.”
On exam plaintiff’s pulmonary functions were “fairly normal” and his oxygen
saturation was 97% on room air, which is normal. He was assessed with sleep apnea syndrome
with restless legs. Dr. Devins recommended an overnight sleep study to rule out obstructive
sleep apnea4 and to evaluate limb activity. He gave plaintiff a prescription for Lunesta.
On October 19, 2005, plaintiff had a sleep study which showed mild obstructive sleep
apnea with oxygen saturations well maintained (Tr. at 221). Periodic limb movements were
not frequent. Quintin Cokingtin, M.D., encouraged plaintiff to sleep on his side as his
respiratory events occurred much less commonly when he slept on his side. He also
“Obstructive sleep apnea is a potentially serious sleep disorder in which breathing
repeatedly stops and starts during sleep. Several types of sleep apnea exist, but the most
common type is obstructive sleep apnea, which occurs when your throat muscles
intermittently relax and block your airway during sleep. The most noticeable sign of
obstructive sleep apnea is snoring.”
recommended a CPAP.5
On October 31, 2005, plaintiff aw Dr. Boyd for a follow up on hip pain, hypertension,
depression, insomnia and hyperlipidemia (Tr. at 195). “He is doing better currently.” His
depression and insomnia were noted to be improved. Plaintiff was given information on diet
and exercise and was told to start fish oil capsules.
On January 6, 2006,6 plaintiff was seen by Gregory Walker, M.D., a neurosurgeon, in
connection with his Worker's Compensation claim (Tr. at 183-188). Plaintiff claimed that his
job of scooping red slogs with a scoop on a repetitive basis to fill hoppers at Lake City
Ammunition caused shoulder pain. Plaintiff had undergone surgery to repair a right rotator
cuff tear and subsequent physical therapy. When plaintiff returned to work, he was unable to
work more than six hours due to shoulder pain and had not gone back to work since. Plaintiff
said he has shoulder discomfort when performing any work above 90 degrees.
Dr. Walker reviewed plaintiff’s medical records and noted that on August 9, 2004,
plaintiff had seen Dr. Hall about his right shoulder pain. “He performed some overhead
activities and said that he had had those problems in his shoulders since a car accident back in
the 90s, but his job occasionally aggravated it and he had not decided whether . . . he [was]
going to make this [a] Workman’s Compensation [claim].”
Current Complaints: The patient states that he still has limited range of motion in the
right shoulder with discomfort produced by abduction beyond 90 degrees or flexion
beyond 90 degrees. He states he is unable to perform any work, which required
Continuous positive airway pressure (CPAP) therapy is a common treatment for obstructive
sleep apnea. It includes a small machine that supplies a constant and steady air pressure, a
hose, and a mask or nose piece. A CPAP machine increases air pressure in the throat so that
the airway does not collapse during breathing.
Dr. Walker’s letter to T. K. Thompson referenced plaintiff’s appointment on January 6,
2005 and his letter was dated January 10, 2006 Because the letter refers to an occurrence on
September 6, 2005, I conclude that the date of the appointment was actually January 6, 2006.
shoulder level or higher positioning of the arm. With regard to his left arm, which
suffered a fracture in 97 . . . he states that he does well with this for the most part. . . .
Recently he saw Dr. Greg Hummel Independence an orthopedic surgeon and at that
time the patient states he was riding a mountain bike. Dr. Hummel told him, he should
avoid this at all cost, as this would have a detrimental effect on his total hip
Plaintiff said he had also been diagnosed with an inguinal hernia, and he has sleep
apnea and restless leg syndrome. He was a 20-year smoker. He graduated from high school
and completed training to be a dental assistant in the late 80s. He worked at a studio making
stained glass for 17 years but the studio went bankrupt.
Physical Examination: The patient is 6 feet in height and weighs approximately 175
pounds. He is awake, alert and oriented. His speech appears lucid and fluent. His
affect is normal. . . . Range of motion of the cervical spine is full and unimpeded.
Strength in the upper extremities appears normal in all muscles tested . . . . Range of
motion testing of the right upper extremity reveals abduction to approximately 160
degrees, forward flexion to 160 degrees, extension, internal rotation, external rotation
were all normal. Left shoulder range of motion is normal. Strength in the lower
extremities appeared normal. . . . The patient was able to heel and toe walk. Reflexes
were intact . . . . The patient’s gait appeared normal and the pelvis appeared level.
Impression: . . . The patient has had an excellent surgical result but continues to have
pain particularly with any work above shoulder level, which is uncommon. I feel that
the patient has reached maximum medical improvement from this surgery and injury
and would rate him currently at 30% permanent partial disability at the level of the
shoulder. . . .
At this point in time, restrictions should include no work above shoulder level with the
right arm, no lifting greater than 20 pounds with the right upper extremity, avoidance
of climbing ladders or any activities requiring excessive rotation of the hip joints.
On January 26, 2006, plaintiff saw Dr. Boyd for a follow up on hypertension (Tr. at
193). Plaintiff’s blood pressure had been 190/120 when he went in for pulmonary function
testing. His blood pressure on this day was 144/112. EKG was normal. Plaintiff was given
medication for hypertension.
On February 21, 2006, plaintiff saw Dr. Boyd for a follow up (Tr. at 192). Plaintiff had
had lab work which showed elevated triglycerides (fat in the blood) and elevated total
cholesterol and LDL. His blood pressure was 160/100. Plaintiff told Dr. Boyd that Dr. Devins
had given him some ReQuip for his restless leg syndrome which provided relief. Plaintiff was
assessed with hypertension not under good control, high cholesterol not under good control,
and impaired blood sugar metabolism. He was given samples of ReQuip along with a
prescription, five weeks’ worth of samples of Caduet (treats hypertension), and samples of
Benicar (treats hypertension).
On April 26, 2006, plaintiff saw Dr. Boyd for a follow up (Tr. at 191). Dr. Boyd noted
that plaintiff had not yet had a CT scan of his liver which had been recommended because of
“a slight perhaps abnormality” on his echo of the liver. “He reports he is doing relatively well
so far.” Plaintiff stopped taking Cymbalta due to the cost but Dr. Boyd noted that it appeared
not to have caused a problem. He had not followed up with pulmonary for a sleep study and
was strongly encouraged to do so. Plaintiff’s blood pressure was 128/84, his blood work was
near normal, and Dr. Boyd noted that these were “markedly improved.” He recommended diet
and exercise, a pulmonary consult, and Benadryl at night for sleep. He prescribed Ultracet for
pain, Caduet for hypertension, and Benicar for hypertension.
About 13 months later, on June 5, 2007, plaintiff saw Dr. Boyd for a follow up (Tr. at
190). “He has been out of his blood pressure medicines.” Plaintiff’s blood pressure was
205/130. He was given medication in the office and his blood pressure dropped to 154/88.
He was asymptomatic. His exam was normal in all respects. He was assessed with
“Hypertension, not under good control, secondary to nonuse of medication.” He was given
samples of Caduet and Benicar, both for hypertension.
A year later, on June 10, 2008, plaintiff saw Dr. Boyd for a follow up (Tr. at 189).
Plaintiff reported he had been unable to get his lab tests done because he could not afford it.
Plaintiff continued to take Tramadol for pain, Naprosyn (non-steroidal anti-inflammatory),
Benicar (for hypertension) and Caduet (for hypertension). Plaintiff’s physical exam was
normal. His blood pressure was 170/104. Dr. Boyd discontinued Caduet and Benicar and
prescribed Lisinopril and Norvasc for hypertension and Pravachol for high cholesterol.
On July 16, 2008, plaintiff went to the emergency room at Truman Medical Center
complaining of back pain (Tr. at 280-282). He saw David Dahl, M.D. Plaintiff said he had
hurt his back when he slipped off a boat. Plaintiff’s physical exam was normal except he had
some tenderness over the lower lumbar spine. He had full range of motion but slow flexion.
X-rays showed some early degenerative changes of the lumbar spine. He was assessed with
back pain. Dr. Dahl prescribed Ultram (opioid), Indocin (non-steroidal anti-inflammatory)
and Flexeril (muscle relaxer).
On September 25, 2008, plaintiff went to Truman Medical Center for a follow up on
high blood pressure, inguinal hernia, obstructive sleep apnea, and depression (Tr. at 264-265).
Plaintiff said he had had the hernia for the past three years. “Does not really cause any
particular pain earlier in the past or at the time.” He was not using a CPAP as had been
recommended for sleep apnea because he said he could not afford one. Plaintiff continued to
smoke. His blood pressure was 170/100. On exam Amy McGaha, M.D., noted an “easily
reducible” inguinal hernia. He had normal strength in all extremities. His gait was normal.
Mood and affect appeared somewhat anxious. Plaintiff was assessed with severe hypertension
(his medication was increased), inguinal hernia (surgery was recommended), history of
obstructive sleep apnea and depression. “[U]se CPAP as needed. This may be the source for
many of his underlying problems including his hypertension, depression, restless legs, daytime
somnolence problems.” He was given a prescription for Celexa (antidepressant).
On October 23, 2008, plaintiff saw Lynn Happel, M.D., at Truman Medical Center for
laparoscopic repair of the hernia (Tr. at 246-247).
On November 5, 2008, plaintiff saw Dr. Happel for a follow up on his hernia surgery
(Tr. at 275). “[H]e has had no difficulty, has noticed no pain in his groin area. He needed pain
medication only for a couple of days.” Plaintiff’s blood pressure was 136/80. Dr. Happel told
plaintiff to come back in one month and in the meantime not to lift anything greater than 20
pounds or do any strenuous activity. “When he returns to our clinic, at that time, we
anticipate discharge from the general surgery clinic and released [sic] to full activity.”
On November 13, 2008, plaintiff saw Matthew John, M.D., at Truman Medical Center
for a follow up on hypertension (Tr. at 270). “He noticed no headache, vision change, chest
pain, shortness of air, abdominal pain, nausea, vomiting, diarrhea, lower extremity swelling, or
pain. He notes no neurologic deficit. No focal or muscular deficits. The patient has normal
reported sensation.” Plaintiff’s blood pressure was 130/90. Plaintiff was assessed with
uncontrolled hypertension and his medication was increased.
On December 16, 2008, plaintiff saw Dr. John for a follow up on hypertension and left
hip pain (Tr. at 266). Plaintiff complained that his hip pain was limiting most of his activities.
Plaintiff’s blood pressure was 152/94. Dr. John noted that plaintiff’s gait was abnormal in that
he favored his left hip. He had tenderness to palpation over his left hip. Range of motion was
limited by pain. Dr. John assessed uncontrolled hypertension and chronic left hip pain. He
refilled plaintiff’s hypertension medications; prescribed amitriptyline (antidepressant),
gabapentin (for nerve pain) and Lidoderm patches (for nerve pain); and referred him to an
Ten months later, on October 29, 2009, plaintiff saw Dr. John complaining of left hip
pain, hypertension and “status post head trauma” (Tr. at 250-251). Plaintiff said he had seen
someone in orthopedics who said to continue with his current hip care plan. Plaintiff
described his hip pain as “disabling” and said he has to lie down for a couple of days in a row
whenever he exerts himself too much or works too hard. Plaintiff had just recently restarted
his high blood pressure medication. He also reported having recently been the victim of a car
jacking and had a gash across the left side of his forehead. He reported having no fainting, no
dizziness, no nausea. “Seems to be doing otherwise well.” Plaintiff’s blood pressure was
152/110. Plaintiff had normal range of motion but with some pain in his hip. Strength was
normal in all extremities. His gait was observed to be normal.
Dr. John assessed chronic left hip pain for which he prescribed gabapentin (for nerve
pain), meloxicam (non-steroidal anti-inflammatory), and Ultram (for pain). He assessed a
concussion. A CT taking at CenterPointe Hospital had been normal. He was assessed with
hypertension and was told to restart hydrochlorothiazide and lisinopril.
Six months later, on April 29, 2010, plaintiff saw Dr. John at Truman Medical Center
for routine evaluation of hypertension and left hip pain (Tr. at 248). “Mostly today he needed
to be seen for his blood pressure because he has not [been] seen at least in six months. I think
it has been almost a year actually since I have seen him last. Today, he notes feeling overall
well. He has a lot of stress in his life, and says that all of his problems are exacerbated by his
stress.” Plaintiff reported having no headache, no vision change, no chest pain, no shortness of
air, no nausea, no vomiting, no diarrhea, no constipation, no lower extremity swelling or
edema, and review of systems was otherwise negative. Dr. John performed an exam. Plaintiff’s
blood pressure was 190/116 initially, and Dr. John checked it again himself and it was
150/100. Plaintiff’s exam was normal except that he had pain with any movement of his hip.
Dr. John assessed hypertension (he increased his Coreg and told him to continue his lisinopril
and hydrochlorothiazide), and he assessed left hip osteoarthritis for which he refilled plaintiff’s
June 30, 2010, is plaintiff’s last insured date.
On August 19, 2010, plaintiff completed this application for disability benefits.
On September 23, 2010 -- five months after his last medical appointment -- plaintiff
saw Tara Brown, D.O., at Truman Medical Center to establish care and for a follow up of
“medical problems” and complaints of headache (Tr. at 241-243). Plaintiff reported having
had headaches for the past two weeks which he attributed to stress. “He has a court date due
to child support issues and his pension is running out.” He also complained of feeling short of
breath and he reported recent chest pains. He reported difficulty with focusing with regard to
his vision. He reported suffering with gastroesophageal reflux disease and said that Prilosec,
which had been recommended by Dr. Boyd, was too expensive. Plaintiff had not been taking
his antidepressant, and he needed a refill of his high cholesterol medicine. Plaintiff continued
to smoke a pack and a half of cigarettes per day and he reported occasional alcohol
consumption. Plaintiff’s blood pressure was 125/70. His physical exam was normal. Dr.
Brown noted that plaintiff was using a cane. Plaintiff was observed to be alert and oriented, his
speech and cognition were described as clear, coherent and oriented. He was cooperative with
appropriate mood and affect.
Dr. Brown assessed the following:
Reports of shortness of air and atypical chest pain, with risk factors for heart
disease which include smoking, high cholesterol, and hypertension. She recommended a
cardiac stress test.
Hypertension, controlled. Plaintiff was taking his medication as prescribed with
no adverse reactions.
Chronic hip pain. Plaintiff had not been taking the gabapentin. Dr. Brown
refilled his prescriptions for Ultram and Flexeril.
Depression. Defendant had not been taking his antidepressant “for quite some
time.” She restarted his prescription.
GERD. Because over-the-counter Prilosec was too expensive, Dr. Brown
prescribed ranitidine which was on the $4 drug list.
Hyperlipidemia. Plaintiff “used to take” provastatin and was in need of a refill.
Dr. Brown ordered blood work and told plaintiff to resume provastatin.
Headaches. Likely due to stress, no treatment provided. “I will continue to
On November 29, 2010, Martin Isenberg, Ph.D., a non-examining agency psychologist,
reviewed plaintiff’s file (Tr. at 283-293). Dr. Isenberg found that plaintiff’s mental
impairment was not severe. His mental impairment was identified as depression/stress and
was found to cause mild restriction of activities of daily living; mild difficulties in maintaining
social functioning; mild difficulties in maintaining concentration, persistence or pace; and no
repeated episodes of decompensation. In support of his findings Dr. Isenberg noted that
plaintiff had no formal psychiatric treatment; his activities of daily living were not significantly
limited by psychiatric factors; he is able to do laundry, mow as able, can pay attention for
lengthy periods of time, shops, can manage money, drives, reads, etc.
Plaintiff’s application for disability benefits was denied on December 2, 2010.
On January 14, 2011, plaintiff saw Michael Brown, D.O., and complained of
depression (Tr. at 295-298). Plaintiff said that Dr. Tara Brown had prescribed Celexa in
September and it worked well for two months. Over the last two months he felt a significant
decrease in his mood “due to impending legal problems, which he has. The patient states that
he has been requested to report to prison on January 24 for lack of child support paying it.
The patient reports anxiety, depression, and stress surrounding this event which is not
controlled by the Celexa dosage he is currently on.” Plaintiff also reported chronic hip pain.
“The patient has been treated in the past by a physician in our clinic using tramadol. Patient
reports he is having problem with tramadol due to the fact that he has not been able to get the
certain amount prescribed to him because the pharmacy was refusing to refill the
prescription.” Plaintiff continued to smoke. “The patient was previously employed with
Lakewood Ammunition, and has been on disability.”
Plaintiff’s blood pressure was initially 178/90, and was retaken by Dr. Brown and
found to be 165/90. Dr. Brown observed that plaintiff was well-developed, well-nourished, in
no acute distress. He was alert and oriented times three. His mood and affect were observed to
be appropriate and pleasant, “although at times while discussing his legal problems, he
appeared to be distressed.” His physical exam was normal. Under musculoskeletal exam, Dr.
Brown wrote, “The patient had normal range of motion in all extremities, although was using
a cane to assist himself while walking into the clinic today.” The blood work done in
September 2010 was reviewed -- plaintiff had high cholesterol, high triglycerides, high LDL
and high blood sugar. He was assessed with depression. “At this time it was felt that the
patient’s depression is exacerbated namely by his situational fact that he is facing.”
Dr. Brown increased plaintiff’s antidepressant dosage but explained to plaintiff that his
depression was situational. Dr. Brown did not make any changes to plaintiff’s hip pain
treatment except to permit plaintiff to take over-the-counter Tylenol when needed. Plaintiff
was told to go to the financial assistance office that day to get the Truman Medical Center
discount on a CPAP. “It is possible this is playing some degree in his exacerbation of his
Four months later, on May 25, 2011, plaintiff saw Dr. Tara Brown for a follow up on
hypertension, shortness of breath, and worsening GERD (Tr. at 325-327). Plaintiff had not
been able to afford a stress test. “He tells me that life is pretty stressful right now because he
has been having to make a lot of court dates regarding child support bills.” Plaintiff continued
to smoke a pack and a half of cigarettes per day. He said his shortness of breath is worse when
he exerts himself. Plaintiff asked that his Ultram dosage be increased for his hip pain. He
reported taking over-the-counter Excedrine.
Plaintiff reported taking his antidepressant as directed, “and says that he has noticed a
difference with increase and likes it very much. . . . The patient continues to have headaches
and he continues to think they are related to his anxiety because of his financial situation and
now all the issues surrounding his child support and court dates.” Plaintiff’s blood pressure
was taken at the beginning and end of the appointment and measured 157/97 and 134/86.
He was described as well-developed, well-nourished, in no acute distress. He was noted to
ambulate with the use of a cane. He was alert and oriented times tree, his mood and affect
were appropriate and pleasant. His physical exam was normal. Dr. Brown ordered a chest xray and EKG and recommended that plaintiff have pulmonary function tests and a cardiac
stress test. Plaintiff was told to start taking his high cholesterol medication again. Plaintiff was
told that taking Excedrine was not good management for a long-term headache prevention and
On July 14, 2011, plaintiff saw Dr. Tara Brown for a follow up on hypertension (Tr. at
317-324). Plaintiff reported that his shortness of breath was not as bad as on his last
appointment. Plaintiff showed some interest in smoking cessation but continued to smoke. He
had been taking his GERD medication as needed instead of daily. Plaintiff reported that he
continued to get good benefit from his antidepressant.
His blood pressure was 122/80. He was observed to be alert and oriented, in no acute
distress, with appropriate mood and affect. His physical exam was normal. His hypertension
was noted to be well controlled. He was scheduled to have pulmonary function tests later that
day and he planned to see cardiology in th near future. He was told to take his GERD
medication twice a day. Plaintiff’s had blood drawn for lab tests.
On July 18, 2011, plaintiff saw Darcy Conaway, M.D., a cardiologist, for complaints of
chest pain (Tr. at 314-316). Plaintiff reported that his chest pain started about six months ago,
or approximately January 2011. “Mr. Pennington is fairly sedentary. He does ambulate with a
cane. He has really no other complaints on his 12-system review at this time.” Plaintiff
continued to smoke. Plaintiff’s physical exam was normal. His blood work was reviewed and
it was noted that his liver function tests were more tan two times the upper limits of normal.
Pulmonary function tests from July 14, 2011, revealed moderate obstructive airway disease.
Dr. Conaway recommended an echocardiogram, adjusted his hypertension medication, and
told him to stop smoking. She also recommended blood work to check for hepatitis.
On September 6, 2011, plaintiff saw Dr. Tara Brown to discuss tests and get refills of
medications (Tr. at 307-313). “He reports increased stress because he is facing court this
week and possibly a jail sentence, but he is unsure.” Plaintiff was using a cane and said he was
unable to put much weight on his leg although he had not seen an orthopedic doctor in some
time. Plaintiff reported “no anxiety, no depression”. He continued to smoke. His blood
pressure was 120/80. He was alert and oriented with appropriate mood and affect. Plaintiff’s
GERD was controlled on ranitidine twice a day. He was told to start taking fish oil for his high
cholesterol. His hypertension was noted to be well controlled. He continued to have shortness
of breath and was told to stop smoking. Dr. Brown continued plaintiff on Tramadol for his hip
pain and told him to follow up with orthopedics.
SUMMARY OF TESTIMONY
During the January 10, 2012, hearing, plaintiff, medical expert Dr. Steven B. Gerber,
and vocational expert Kelly Winn-Boaitey testified.
Plaintiff was 52 years of age at the time of the hearing (Tr. at 32). He has a 12th grade
education (Tr. at 32). Plaintiff last worked in March 2005 as a Class 14 tool setter at the Lake
City Army Ammunitions Plant (Tr. at 32). Plaintiff stopped working there because he began
having pain in his right shoulder (Tr. at 33). Plaintiff filed a worker’s compensation claim and
received a settlement for that shoulder pain (Tr. at 35). He received $12,000 of an $18,000
settlement with the remainder going to his attorney (Tr. at 36). Prior to that plaintiff was a
part glazier for a stained glass studio for about 17 years (Tr. at 33). Plaintiff was a sales clerk
at a hardware store from 1998 to 2000 (Tr. at 34). He worked in the yard loading culverts,
barbed wire, cement, and other things used in construction and on the farm (Tr. at 34).
Plaintiff injured his left hip in a car accident (Tr. at 34). He fell asleep behind the
wheel and crossed the center line into oncoming traffic (Tr. at 34). The car rolled four or five
times (Tr. at 35). He was convicted of involuntary vehicular manslaughter and served 120
days of shock incarceration (Tr. at 35). Plaintiff had two surgeries on his hip including a
replacement (Tr. at 35). Because of his hip problems, plaintiff has difficulty walking, standing,
sitting, and rising from a sitting position (Tr. at 36). Without a cane he can walk a half mile;
with the cane he can walk two or three miles (Tr. at 36). Without the cane he can stand for 30
to 45 minutes (Tr. at 36). Plaintiff can sit for 30 to 45 minutes at a time, but the type of chair
he uses affects the length of time he can sit comfortably (Tr. at 37). Plaintiff limits his lifting to
15 or 20 pounds because of his hip pain (Tr. at 37).
Plaintiff has good and bad days with his hip pain (Tr. at 37-38). He has more bad days
a month than good (Tr. at 38). Long car rides exacerbate his hip pain (Tr. at 38). He takes
Tramadol for his pain and although it helps, it does not completely get rid of the pain (Tr. at
Plaintiff has a driver’s license and is able to drive short distances (Tr. at 39). Plaintiff
has a friend who takes care of him (Tr. at 39). He is able to cook simple things like
hamburgers (Tr. at 39). He does not do any household chores (Tr. at 39). His girl friend does
his laundry (plaintiff stated in his Function Report that he does laundry) (Tr. at 39). He pays
someone to do his yard work (Tr. at 39).
Plaintiff is able to raise his right arm to shoulder level, but any higher causes pain (Tr.
at 40). He has bad headaches two to three times a month (Tr. at 40). Because of his
hypertension, his doctors do not like the medication he takes (he described it as
acetaminophen, aspirin and caffeine, which are the active ingredients in over-the-counter
Excedrine) because of the caffeine, but he told them it is the only over-the-counter medication
that works on his headaches (Tr. at 41).
Plaintiff has “extreme” problems with gastroesophageal reflux disease, despite taking
several medications for it (Tr. at 41). His medications cause nausea, GERD, lightheadedness
and dizziness (Tr. at 42). Plaintiff is not seeing a psychiatrist or psychologist because he
cannot afford to, but he is on medication for depression (Tr. at 42). Plaintiff continues to spend
a lot of time in his bedroom and he doesn’t talk (Tr. at 42). He is now on a medication that
helps with crying spells he used to have (Tr. at 42-43).
Plaintiff said that he was still behind in his child support payments but that he had not
been incarcerated over it (Tr. at 43). “I had proof that I had paid this. I had bank statements
from Congress Bank showing that I’d paid $60,000 worth of -- but the judge would not look at
it.” (Tr. at 43). He has been threatened with imprisonment which is causing him considerable
stress (Tr. at 44). I note that plaintiff claimed to be $60,000 behind in child support when he
completed a financial affidavit in support of his motion to file this case in forma pauperis (see
document number 1).
Plaintiff occasionally goes to church services which are two hours long (Tr. at 45). He
is able to understand what is going on (Tr. at 46). He talks to friends and family before, during
and after the services (Tr. at 46). Plaintiff gets along well with his parents (Tr. at 46). He is a
“big reader” and prefers science fiction books but mostly reads automotive and technical
articles about automobiles (Tr. at 46-47). He enjoys reading about cars and performance
engines (Tr. at 47). He watches television, but he has “a lot going on right now” so it’s hard
for him to stay focused on anything for any period of time (Tr. at 47).
Plaintiff supports himself through money he earns doing odd jobs around the house for
his parents (Tr. at 48). He gardens, he helps his dad who is an invalid with a bad knee, he
helps his mother who had back surgery (Tr. at 48).
Plaintiff was just diagnosed with chronic obstructive pulmonary disease which has
“made things worse” (Tr. at 49). He had been smoking for the past 20 years and continued to
smoke at the time of the hearing (Tr. at 49).
Medical expert testimony
Medical expert Dr. Steven Gerber testified at the request of the ALJ. The record
documents hypertension, degenerative joint disease of the right shoulder status post surgery,
degenerative joint disease of the left hip status post hip replacement, and mild sleep apnea (Tr.
at 29-30). None of these impairments meet or equal a listed impairment (Tr. at 30).
Plaintiff’s medical condition according to his records show a functional ability
consistent with light exertional level work with limitations of all posturals on an occasional
basis, and overhead reaching using the right arm limited to occasional (Tr. at 30). Light work
includes lifting/carrying 20 pounds occasionally and 10 pounds frequently (Tr. at 30). The
record does not support a limitation on sitting, standing, or walking (Tr. at 30).
Vocational expert testimony.
Vocational expert Kelly Winn-Boaitey testified at the request of the Administrative Law
Judge. Plaintiff’s past relevant work consists of tool setter, DOT 694.360-010, medium
(performed at heavy), skilled, SVP of 6; retail sales clerk, DOT 290.477-014, light, semiskilled, SVP of 3; and window installer, DOT 779.380-010, medium (performed at light to very
heavy), skilled, SVP of 7 (Tr. at 50-51).
The first hypothetical7 involved a person who could lift 20 pounds occasionally and 10
pounds frequently; should do no work above shoulder level with the right upper extremity;
could occasionally climb stairs, balance, stoop, kneel, crouch and crawl; and should never
climb ladders, scaffolds or ropes (Tr. at 51). Such a person could perform plaintiff’s past
relevant work as a retail sales clerk (Tr. at 51).
If a person missed two or more days of work per month, the person would not be
employable (Tr. at 51). If a person needed breaks away from the work station beyond the
normal scheduled ones, that person would not be employable (Tr. at 52).
FINDINGS OF THE ALJ
Administrative Law Judge Keith Dietterle entered his opinion on February 8, 2012 (Tr.
at 12-22). Plaintiff’s last insured date was June 30, 2010 (Tr. at 12, 14).
There was actually a second hypothetical posed; however, it was no different from the first.
In the second, the ALJ asked the vocational expert to assume a person whose limitations were
the same as the first except the person could do no work above shoulder level with the right
arm (Tr. at 51). Yet the first hypothetical also restricted the person to doing no work above
shoulder level with the right arm. In any event, the vocational expert testified that such a
person could work as a retail sales clerk (Tr. at 51).
Step one. Plaintiff did not engage in substantial gainful activity from his alleged onset
date through his last insured date (Tr. at 14). Although plaintiff had earned income in 2005,
2006, and 2007, those earnings did not amount to substantial gainful activity (Tr. at 14-15).
Step two. Plaintiff suffers from the follow severe impairments: left inguinal hernia,
hypertension, sleep apnea, degenerative joint disease of the left hip, and degenerative joint
disease of the right shoulder status post rotator cuff repair (Tr. at 15). “Regarding the
claimant’s mental health, the record shows that during the relevant time period, the claimant
lacked a severe medically determinable mental impairment or combination of impairments.
This finding is supported by the medical evidence of record.” (Tr. at 16).
Step three. Plaintiff’s impairments did not meet or equal a listed impairment (Tr. at 17).
Step four. Plaintiff retained the residual functional capacity to perform light work but
could not perform any work involving activity above shoulder level with the right arm (Tr. at
19). Plaintiff’s testimony about the intensity, persistence and limiting effects of his symptoms is
not credible to the extent it is inconsistent with the residual functional capacity (Tr. at 19).
The ALJ did not consider any limitation involving plaintiff’s left hip condition because disability
benefits cannot be assigned to any injury or any manifestation from the injury if it occurred
during the commission of a felony, and here plaintiff’s hip injury stemmed from his conduct
which resulted in a felony manslaughter conviction (Tr. at 20).
Through the date last insured plaintiff was capable of performing his past relevant
work as a retail sales clerk both as it was performed and as generally performed (Tr. at 21).
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that plaintiff’s testimony was not credible.
First plaintiff argues that the ALJ improperly relied on a notation in Dr. Brown’s record six
months after plaintiff’s last insured date, which stated that plaintiff was well developed, well
nourished, and in no acute distress with normal range of motion in his extremities. Second
plaintiff argues that the ALJ “did not consider even most of the credibility factors” enumerated
Plaintiff does not state what part of his testimony was erroneously discounted by the
ALJ. Further, plaintiff did not elaborate or even identify which Polaski factors were relevant
but not discussed by the ALJ.
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 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
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).
Plaintiff’s first argument regarding the ALJ’s alleged improper reliance on Dr. Brown’s
medical record dated six months after plaintiff’s last insured date includes the following:
The ALJ found Plaintiff not credible [beyond] the extent of the RFC because of one
notation made by Dr. Brown six months after his date last insured. The ALJ pointed out
Dr. Brown had noted Plaintiff to be well developed, well nourished, and in no acute
distress with normal range of motion in his extremities. Dr. Brown also noted,
however, Plaintiff required the use of a cane to assist with walking, and appeared to be
distressed when discussing his legal problems arising from his motor vehicle accident.
Plaintiff went to see Dr. Brown not for his physical problem, but for his depression. Dr.
Brown did diagnose depression and started Plaintiff on an antidepressant. Further, Dr.
Brown diagnosed and treated hypertension, chronic hip pain, GERD, obstructive sleep
apnea, and hyperlipidemia. This single notation from 6 months after Plaintiff’s date last
insured and 6 years after his onset date of disability does not diminish Plaintiff’s
(plaintiff’s brief at pages 18-19).
In addition to failing to indicate what part of plaintiff’s testimony is improperly
contradicted, I note inaccuracies in plaintiff’s argument. Dr. Brown did not note that plaintiff
“required” the use of a cane, Dr. Brown noted that plaintiff used a cane. However, there is no
medical record showing that any doctor prescribed, or even recommended, that plaintiff use a
cane. In fact, the record contains repeated recommendations that plaintiff exercise, not that he
use a cane. On January 6, 2006, Dr. Walker observed that plaintiff’s gait was normal. On
September 25, 2008, Dr. McGaha observed that plaintiff’s gait was normal. On December 16,
2008, Dr. John observed that plaintiff’s gait was abnormal in that he favored his left hip. He
referred plaintiff to an orthopedic specialist; however, there is no evidence that plaintiff saw an
orthopedic specialist at that time. In fact, his next medical record is dated ten months later
when he went to see Dr. John again about hip pain and Dr. John observed at that time
(October 29, 2009) that plaintiff’s gait was normal. Plaintiff first showed up at a doctor’s
office with a cane on September 23, 2010 -- one month after he applied for disability benefits.
This is the medical report discussed in this argument. Dr. Tara Brown observed that plaintiff
was using a cane; however, plaintiff’s physical exam on this day was normal.
Plaintiff argues that he went to see Dr. Brown not for a physical problem but for
depression. However, the record states that plaintiff went to see Dr. Brown to establish care
and for a follow up of “medical problems” and complaints of a headache. “[Plaintiff] presents
to the family medicine clinic today for f/u of HTN [hypertension], hip pain, depression, GERD,
hyperlipidemia, and a new complaint today of HA [headache] and also some SOA [shortness of
air].” Although Dr. Brown did assess depression, she noted that plaintiff had not been taking
his antidepressant “in quite some time.” She gave him a new prescription for the same
medication he had been prescribed some time ago but had stopped taking (and noted that it
was on the $4 drug list). She also observed that plaintiff was alert and oriented; his speech and
cognition were clear, coherent and oriented; he was cooperative; and his mood and affect were
appropriate. The majority of her record was indeed focused on physical problems, not
depression. She assessed reports of shortness of air and atypical chest pain but noted that
plaintiff continued to smoke and had further cardiac risk factors of high cholesterol and
hypertension. She assessed hypertension -- controlled as he was finally taking his medication
as prescribed and with no adverse side effects. She assessed chronic hip pain but noted that
plaintiff had not been taking his gabapentin which had been prescribed for his hip pain. She
assessed GERD but noted that plaintiff had not been taking the over-the-counter Prilosec as
recommended allegedly due to cost, but yet he continued to find the money to buy cigarettes.
She assessed hyperlipidemia and noted that plaintiff was no longer taking the provastatin that
had been prescribed for high cholesterol. Finally, she assessed headaches but provided no
treatment and instead indicated that she would simply monitor that condition.
Plaintiff argues that Dr. Brown noted that plaintiff appeared to be distressed when
discussing his legal problems arising from his motor vehicle accident; however, plaintiff was
noted to be distressed due to an upcoming court date due to child support issues and the fact
that his “pension is running out.” He was also noted to be tearful that day because he said his
sister had breast cancer and was very ill.
The Polaski factors support a finding that plaintiff has no greater limitations than those
found by the ALJ.
Work Record. Although plaintiff has a good work record for the most part, the record
establishes that his job of 17 years ended when the company went bankrupt, and his job as a
tool setter ended when his employer found out about his felony conviction.
Daily Activities. Plaintiff stated in a Function Report that he is able to do laundry
(which was contradicted by his hearing testimony), shop for groceries, read, watch television,
and drive. He reported going to Concerts in the Park on a regular basis. He said that his
condition does not affect his ability to remember, concentrate, understand, follow directions, or
pay attention. On January 6, 2006, plaintiff saw Dr. Walker and said he had recently been
riding a mountain bike. At the administrative hearing, plaintiff testified that he was supporting
himself with the money he earned doing odd jobs around the house for his parents, gardening,
helping his dad who was “an invalid” and helping his mother who had had back surgery.
Duration, Frequency and Intensity of Symptoms. Plaintiff’s hypertension, even when
not under control, was noted to be asymptomatic. Prior to the time of his hernia repair, it was
noted to have not caused any particular pain “in the past or at present.”
Plaintiff had long absences from medical care after his alleged onset date which
suggests that his symptoms were not as severe as he claims. In June 2007, he had not seen a
doctor in 13 months. After that appointment he waited another year to see a doctor. After
December 2008, plaintiff waited ten months to return for medical care. After that
appointment, six months elapsed. Lest defendant argue that his lack of funds caused his
infrequent medical appointment, I point out that on June 5, 2007, after a 13-month period
with no medical care, plaintiff saw Dr. Boyd because he had been out of his blood pressure
medicine. He was noted to be asymptomatic, and his exam was normal in all respects. He had
no other medical complaints. On June 10, 2008, after a year with no medical care, plaintiff
saw Dr. Boyd for a follow up and a refill on his medications, and his physical exam was
normal. No treatment was provided other than refills. On October 29, 2009, after ten months
with no medical care, plaintiff saw Dr. John because he had been the victim of a car jacking
and had a gash across the left side of his forehead. “Seems to be doing otherwise well.” On
April 29, 2010, after a six-month period with no medical care, plaintiff was seen for “routine
evaluation” of hypertension and left hip pain. “Today, he notes feeling overall well.”
Plaintiff’s physical exam was normal other than pain in his hip. The medical records establish
that plaintiff did not seek frequent medical care because it was not needed. In addition, during
this entire time, plaintiff had the ability to finance his daily smoking habit. It was not until his
“pension” was running out that plaintiff applied for disability benefits and then sought medical
care on a regular basis. However, by then, his last insured date had passed.
Precipitating and Aggravating Factors. On September 5, 2008, Dr. McGaha told
plaintiff that his failure to use a CPAP machine for his sleep apnea “may be the source for
many of his underlying problems including his hypertension, depression, restless legs, [and]
daytime somnolence problems.” Dr. Michael Brown told plaintiff the same thing on January
11, 2011 -- two years and four months later. At no time during the time between plaintiff’s
alleged onset date and his last insured date did he ever use a CPAP as recommended.
Dr. Michael Brown believed that plaintiff’s depression was exacerbated by his belief
that he had to report to prison in ten days. His depression was noted on multiple occasions to
be situational -- mostly a result of his pending legal troubles and the prospect of going to jail
but also due to his pension benefits (apparently related to his worker’s compensation case)
running out. Clearly his hypertension, shortness of air, and chest pains were exacerbated by
his continued smoking; however, even those conditions were noted to cause no functional
Dosage, Effectiveness, and Side Effects of Medication. The record establishes that when
plaintiff took his medication as prescribed, his conditions were noted to be under control. In
April 2006, Dr. Boyd noted that plaintiff had stopped taking his antidepressant but that it had
not appeared to cause a problem. On June 5, 2007, plaintiff had been out of his blood pressure
medicine and his blood pressure was very high at 205/130; however, he was noted to be
asymptomatic. When plaintiff finally started taking his antidepressant regularly, he noted that
he saw a difference and “likes it very much.” Later he continued to report that he was getting
good benefit from his antidepressant. Two months after that plaintiff continued to report “no
anxiety, no depression.” When plaintiff took his ranitidine twice a day as directed, his GERD
symptoms were completely resolved.
Although plaintiff testified at the hearing that his medications caused nausea, GERD,
lightheadedness and dizziness, the medical records reflect that he never reported any of these
symptoms other than GERD and then only when he failed to use his medication as
recommended. Further his GERD symptoms were only treated with prescription medication
because it was cheaper than over-the-counter antacid medication. Plaintiff specifically
reported no side effects from medication when he saw Dr. Tara Brown and at that time he was
taking Celexa, Flexeril, Pravachol, Ultram, Carvedilol, Gabapentin, Hydrochlorothiazide,
Lisinopril, and Ranitidine. Therefore, it is unclear what medication plaintiff believed, at the
time of his hearing testimony, was causing him adverse side effects.
Functional Restrictions. The only functional limitations dealing with his shoulder
occurred from March 17, 2005 (the date of his surgery) until August 15, 2005, when he was
released to return to work with no restrictions beyond that found by the ALJ. This covers a
period of only five months. Plaintiff’s orthopedic surgeon stated less than six months after the
surgery that she would not want him performing a position where he has to use his right arm
above shoulder level continuously. This is consistent with the RFC as assessed by the ALJ. Dr.
Walker recommended in January 2006 that plaintiff not do work above shoulder level with the
right arm and not lift more than 20 pounds with his right arm which again is consistent with
the RFC assessed by the ALJ.
Regarding his overall physical condition, the record contains multiple recommendations that plaintiff exercise, not that he limit any activity. In fact, during the period between
his alleged onset date and his last insured date, plaintiff consistently had essentially normal
exams. On June 5, 2007, Dr. Boyd’s exam was normal in all respects. On June 10, 2008, Dr.
Boyd’s exam was normal. On July 16 2008, Dr. Dahl’s exam was normal except tenderness
over the lumbar spine after plaintiff fell off a boat. On October 29, 2009, Dr. John’s exam was
normal except that plaintiff had some pain in his hip. On April 29, 2010, Dr. John’s exam was
normally except that plaintiff had some pain in his hip. Even after his last insured date,
plaintiff’s exams continued to be essentially normal. On September 23, 2010, Dr. Tara
Brown’s exam (physical and mental) was normal. On January 14, 2011, Dr. Michael Brown’s
physical exam was normal and his mental exam was normal except that plaintiff appeared to
be distressed when talking about his legal problems. On May 11, 2011, Dr. Tara Brown’s
exam (physical and mental) was normal. On July 14, 2011, Dr. Tara Brown’s exam (physical
and mental) was normal. On July 18, 2011, Dr. Conaway’s exam was normal.
Aside from all of the above, I point out that plaintiff’s hearing testimony is essentially
consistent with the ALJ’s finding. Plaintiff testified that he has problems walking, standing,
sitting and rising from a seated position, but he said all of those limitations were caused by his
hip problems. 20 C.F.R. § 404.1506(a) provides as follows: “In determining whether you are
under a disability, we will not consider any physical or mental impairment, or any increase in
severity (aggravation) of a preexisting impairment, which arises in connection with your
commission of a felony after October 19, 1980, if you are subsequently convicted of this
crime.” Therefore, the ALJ properly discounted any limitation caused by plaintiff’s hip in
assessing plaintiff’s residual functional capacity. Plaintiff testified that he limits his lifting to 15
or 20 pounds, which is (1) consistent with the ALJ’s residual functional capacity assessment,
and (2) caused by plaintiff’s hip, according to his testimony. Plaintiff testified that he is able to
raise his arm to shoulder level but any higher causes him pain. Again, this is consistent with
the ALJ’s residual functional capacity assessment. Plaintiff testified that his doctor does not like
him to take Excedrine for his headaches, but he did not testify as to any functional restriction
caused by headaches, and the medical records establish that plaintiff first complained of
headaches three months after his last insured date, and prior to that had specifically denied
headaches on November 13, 2008, and on April 29, 2010. There is no further mention of
headaches in the medical records. There is no other hearing testimony that is inconsistent with
the ALJ’s residual functional capacity assessment.
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’s testimony is not credible to the extent it alleges
limitations more severe than those found in the ALJ’s residual functional capacity assessment.
RESIDUAL FUNCTIONAL CAPACITY
Plaintiff argues that the ALJ erred in failing properly to assess plaintiff’s residual
functional capacity in that the ALJ found that plaintiff suffered from mild restriction of
activities of daily living; mild difficulties maintaining social functioning; and mild difficulties
maintaining concentration, persistence or pace, but the ALJ did not include corresponding
limitations in the residual functional capacity. Plaintiff argues that even though the ALJ found
that plaintiff’s mental limitation was not a severe impairment, he was required to include some
mental limitation in the residual functional capacity.
Plaintiff does not identify what mental capability he cannot perform that the ALJ found
he could perform. Again, I note that (1) plaintiff’s testimony during the hearing is not
inconsistent with the ALJ’s residual functional capacity assessment, and (2) when plaintiff
finally took his antidepressant as instructed he consistently reported no anxiety, no depression,
and no other mental symptoms. His Function Report and his hearing testimony established that
he is an avid reader of technical material; his condition does not affect his ability to remember,
to concentrate, to understand, or to follow instructions; and he is able to pay attention for
several hours. Further, although plaintiff argues that the ALJ should have assessed limitations
based on plaintiff’s sleep apnea, the record establishes that plaintiff never complied with his
doctor’s recommendation to use a CPAP which was the only treatment ever recommended for
his sleep apnea. 20 C.F.R. 404.1530 provides in part as follows:
When you do not follow prescribed treatment. If you do not follow the
prescribed treatment without a good reason, we will not find you disabled or, if you are
already receiving benefits, we will stop paying you benefits.
Acceptable reasons for failure to follow prescribed treatment. We will
consider your physical, mental, educational, and linguistic limitations (including any
lack of facility with the English language) when determining if you have an acceptable
reason for failure to follow prescribed treatment. The following are examples of a good
reason for not following treatment:
The specific medical treatment is contrary to the established
teaching and tenets of your religion.
The prescribed treatment would be cataract surgery for one eye,
when there is an impairment of the other eye resulting in a severe loss of vision
and is not subject to improvement through treatment.
Surgery was previously performed with unsuccessful results and
the same surgery is again being recommended for the same impairment.
The treatment because of its magnitude (e.g., open heart surgery),
unusual nature (e.g., organ transplant), or other reason is very risky for you; or
The treatment involves amputation of an extremity, or a major
part of an extremity.
Plaintiff offered no good reason for failing to get a CPAP. Although he on occasion
claimed he did not get one due to cost, he continued to smoke and even after Truman Medical
Center physicians mentioned the CPAP could be obtained through the Truman discount, there
is no evidence that plaintiff ever got one.
Plaintiff further argues that the residual functional capacity assessment is erroneous
because the ALJ relied heavily on the testimony of Dr. Gerber who did not hear plaintiff’s
testimony, did not talk about plaintiff’s inguinal hernia (which the ALJ found to be a severe
impairment but did not find any corresponding functional limitations), and whose opinion did
not mirror the findings of the ALJ with regard to all of plaintiff’s limitations. This argument is
without merit. Dr. Gerber’s testimony was that plaintiff’s restrictions are less severe than those
found by the ALJ. The medical record states that plaintiff’s hernia was causing no pain during
the three years before it was surgically repaired. Despite plaintiff’s argument that the ALJ
should have limited plaintiff’s stooping, bending, twisting, crouching, and crawling because
those activities “would be” affected by a hernia, the record establishes that plaintiff never
complained of any symptoms or limitations whatsoever related to his hernia. The ALJ’s
residual functional capacity assessment need not be based on the opinion of any one particular
doctor, rather he is charged with determining the most that a plaintiff can do considering all of
the credible evidence in the record. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
Based on the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s residual functional capacity assessment.
PAST RELEVANT WORK
Plaintiff argues that the ALJ erred in finding that plaintiff had past relevant work as a
retail sales clerk because there were no “sales” involved in his position as performed. This
argument is without merit. Plaintiff testified that he worked as a sales clerk. The vocational
expert testified that a hypothetical person with the residual functional capacity as assessed by
the ALJ could perform the duties of a sales clerk position as defined by the Dictionary of
Occupational Titles and as described by plaintiff. Since plaintiff could perform the actual
functional demands of this past relevant job, it did not matter whether his job description
perfectly aligned with the DOT definition. Moad v. Massanari, 260 F.3d 887, 891 (8th Cir.
2001); Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996) (citing SSR 82-61).
Plaintiff argues that the ALJ erred in failing to consider plaintiff’s learning difficulties in
finding that he could perform the job of retail sales clerk, and that plaintiff’s learning
difficulties should have been included in the hypothetical to the vocational expert. He points to
a document prepared by Jewish Vocational Service on July 10, 2008 (Tr. at 235-240). This
document states that plaintiff was terminated from his job as a tool setter at the ammunitions
plant “when a background check was done and his felony for manslaughter in an auto
accident was revealed.” Plaintiff reported as his strengths strong learning ability with practice,
detail oriented, and good literacy skills. His adult basic learning examination showed that his
vocabulary was in the 99th percentile, his reading comprehension was in the 98th percentile,
total language was in the 50th percentile, total math was in the 21st percentile. As far as
learning style, the report states as follows:
Mike had uneven results on his testing. He appears to have some difficulty with speed
constraints of testing possibly due to the lack of exposure to computer usage. He has
retained his literacy skills at an average to above average level as measured by the Adult
Basic Learning Examination. Math score fell in the low average range indicating a need
for review and exposure to higher level study. He has the ability to read and
understand technical information and would appear to have sufficient effective
learning ability to grasp a vocational training program.
Finally, the report includes the following: “Mike appears to still be at the reasoning
stage where zero income is more acceptable than beginning pay.” This followed a discussion
about plaintiff having earned $18 per hour at his last job that ended when his manslaughter
conviction was discovered.
Plaintiff’s past relevant work includes skilled and semi-skilled work. There is no
evidence that anything occurred which would change his ability to perform this level work.
Plaintiff’s argument on this basis is wholly without merit.
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
May 2, 2014
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