Duncan v. Astrue
Filing
17
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 9/2/2011 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
CHRISTOPHER DUNCAN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
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Case No.
10-3312-CV-S-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Christopher Duncan seeks review of the final
decision of the Commissioner of Social Security denying
plaintiff’s application for disability benefits under Titles II
and XVI of the Social Security Act (“the Act”).
Plaintiff argues
that the ALJ erred in (1) considering plaintiff’s daily
activities in finding him not disabled; (2) discounting the
opinion of plaintiff’s treating physician, Dr. Daniel Schmidt;
and (3) in failing to consider the combined effect of all
plaintiff’s impairments.
I find that the substantial evidence in
the record as a whole supports the ALJ’s finding that plaintiff
is not disabled.
Therefore, plaintiff’s motion for summary
judgment will be denied and the decision of the Commissioner will
be affirmed.
I.
BACKGROUND
On August 27, 2007, plaintiff applied for disability
benefits alleging that he had been disabled since November 11,
2006.
Plaintiff’s disability stems from neck and knee pain and
depression.
2007.
Plaintiff’s application was denied on November 6,
On June 25, 2009, a hearing was held before an
Administrative Law Judge.
On July 15, 2009, the ALJ found that
plaintiff was not under a “disability” as defined in the Act.
On
June 8, 2010, the Appeals Council denied plaintiff’s request for
review.
Therefore, the decision of the ALJ stands as the final
decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for
judicial review of a “final decision” of the Commissioner.
The
standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by
substantial evidence.
42 U.S.C. § 405(g); Richardson v. Perales,
402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th
Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.
1996).
The determination of whether the Commissioner’s decision
is supported by substantial evidence requires review of the
entire record, considering the evidence in support of and in
opposition to the Commissioner’s decision.
Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989).
“The Court must also take into
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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).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of
proving he is unable to return to past relevant work by reason of
a medically-determinable physical or mental impairment which has
lasted or can be expected to last for a continuous period of not
less than twelve months.
42 U.S.C. § 423(d)(1)(A).
If the
plaintiff establishes that he is unable to return to past
relevant work because of the disability, the burden of persuasion
shifts to the Commissioner to establish that there is some other
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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.
codified at 20 C.F.R. §§ 404.1501, et seq.
These regulations are
The five-step
sequential evaluation process used by the Commissioner is
outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful
activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a
combination of impairments which significantly limits his ability
to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment
in Appendix 1?
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing
past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
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5.
Does the impairment prevent the claimant from doing any
other work?
Yes = disabled.
No = not disabled.
IV.
THE RECORD
The record consists of the testimony of plaintiff, his
grandmother Dorothy Duncan, and vocational expert Delores
Gonzales, in addition to documentary evidence admitted at the
hearing.
A.
EARNINGS RECORD
The record shows that plaintiff earned the following income
from 1991 through 2009:
Year
Earnings
Year
Earnings
1991
$ 1,845.13
2001
$24,842.58
1992
5,035.87
2002
23,927.05
1993
7,081.68
2003
18,147.82
1994
12,449.20
2004
13,304.32
1995
14,614.65
2005
15,156.37
1996
16,469.58
2006
20,974.88
1997
20,107.92
2007
2,270.00
1998
21,797.57
2008
0.00
1999
22,845.66
2009
0.00
2000
24,710.32
(Tr. at 139).
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B.
SUMMARY OF MEDICAL RECORDS
On September 28, 2005, Curtis Mather, D.O., at Lake Regional
Health System performed surgery “without complications” on
plaintiff’s left knee for patellar tendinitis (Tr. at 278-79).
During a follow-up visit on October 17, 2005, plaintiff had
full range of motion in the left knee and reported that “[t]he
pain that he was having preoperatively [wa]s significantly
improved.” (Tr. at 277).
Plaintiff was asked to return in one
month or sooner if he had “trouble.”
The records do not show
that plaintiff returned to the office.
November 11, 2006, is plaintiff’s alleged onset of
disability.
This is 13 months after plaintiff’s knee follow-up.
On November 20, 2006, plaintiff had his first appointment
with Daniel Schmidt, M.D., at Central Ozarks Medical Center
following surgery on the cervical spine by another physician (Tr.
at 303).
Plaintiff fractured his C6 and C7 vertebra and scapula
after he fell 20 to 25 feet from a deer stand.
Plaintiff was
prescribed hydrocodone (narcotic), OxyContin (narcotic), and
Flexeril (muscle relaxer) and was told to wear a neck brace for
three months.
Plaintiff continued his treatment with Dr. Schmidt and on
January 16, 2007, reported that his pain medication had been
“stolen again” (Tr. at 302).
Dr. Schmidt referred to it as a
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“story” of his “OxyContin 20 and 40 mg and Oxycodone pills being
stolen from his vehicle while briefly away from it at the
supermarket. . . .
When I entered the exam room he was leaning
over the trash can and claimed he had just thrown up into it.”
Although Dr. Schmidt noted, “I am aware that he has claimed
stolen medications at least twice before”, he refilled
plaintiff’s Oxy-IR (instant release form of narcotic) and
OxyContin 40 mg and gave him a prescription for Phenergan for
nausea because plaintiff indicated concern over withdrawal
symptoms.
He discontinued plaintiff’s OxyContin 20 mg.
On February 9, 2007, plaintiff saw Sami Khoshyomn, M.D., of
St. John’s Spine Center who had three months prior performed an
anterior posterior spine stabilization and fusion surgery at C6-7
and was “very happy with [plaintiff’s] improvement” (Tr. at 308).
Plaintiff was “very satisfied” with his improvement and progress.
Dr. Khoshyomn told plaintiff he no longer needed to use the
cervical collar.
Although Dr. Khoshyomn recommended physical
therapy to improve the range of motion in plaintiff’s neck,
plaintiff declined and said he would do exercises at home.
Dr.
Khoshyomn expressly released plaintiff to return to work and did
not identify any work restrictions or exertional limitations (Tr.
at 308).
He told plaintiff to come back in six months to repeat
the x-ray of the cervical spine, or to come back sooner if
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plaintiff had problems.
Dr. Khoshyomn reported all of this in a
letter to Dr. Schmidt.
Plaintiff returned to Dr. Schmidt on February 26, 2007, and
he was diagnosed with gastroenteritis after reporting nausea and
vomiting for the past day and a half (Tr. at 301).
Dr. Schmidt
prescribed Phenergan.
Plaintiff returned to Dr. Schmidt on March 6, 2007, with
complaints of recurrent disturbed sleep (Tr. at 300).
“Here for
OxyContin, Oxy-IR script refills, also noting recurrent disturbed
sleep, only ‘one hour last night.’
He recalls Trazodone being
helpful in the past and this was stopped at the time of his Cspine surgery in mid November.”
deferred.
Formal exam was expressly
Dr. Schmidt diagnosed plaintiff with chronic pain,
knee arthritis, chronic insomnia and recent C-spine surgery.
He
prescribed OxyContin, Oxy-IR and Trazodone.
On March 19, 2007, plaintiff told Dr. Schmidt he had
suffered a loss of feeling in his left leg causing him to fall
twice three days ago (Tr. at 299).
Plaintiff asked to be put
back on the OxyContin 20 mg plus the 40 mg OxyContin.
patient appears to have full use of arms and legs.
hallway without limping.
“The
Walked in the
Has good neck range of motion.”
Despite assessing, “STORY OF RECENT FALLS WITH LEFT NECK
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DISCOMFORT”, Dr. Schmidt increased the dosage of OxyContin at
plaintiff’s request (Tr. at 299).
Plaintiff returned to Dr. Schmidt on April 6, 2007 for a
follow up (Tr. at 298).
Plaintiff felt that his shoulder and
neck were better, and he said he had not had anymore falls or leg
numbness.
Dr. Schmidt deferred formal exam and wrote
prescriptions for OxyContin 20 + 40 mg. twice a day, Oxy-IR, and
Trazodone which plaintiff said was helping him sleep.
On May 4, 2007 plaintiff saw Dr. Schmidt for a medication
refill (Tr. at 297).
Plaintiff noted that he still had
discomfort across his shoulder but could move his neck fairly
well although he was laid up for several days after
“participating in a benefit golf tournament at Tan-Tar-A
recently.”
Dr. Schmidt noted that plaintiff appeared to have
good neck motion but deferred formal exam.
He wrote
prescriptions for OxyContin 20 + 40 mg twice a day and Oxy-IR.
“[D]id offer to discontinue the 20 mg dose which patient prefers
to continue.”
On June 1, 2007 plaintiff saw Dr. Schmidt for medication
refills (Tr. at 296).
“Here for medication refills, still notes
lower neck discomfort at times, but no new changes otherwise.”
Formal exam was deferred, and Dr. Schmidt refilled plaintiff’s
OxyContin 20 + 40 mg and Oxy-IR.
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Plaintiff returned to St. John’s Spine Center on August 10,
2007, for a follow-up visit on his cervical spine surgery (Tr. at
311).
He reported “getting along well” for the last six months,
but he had increasing neck pain and migraine headaches after
“helping his friends move a hot tub and he had to do a lot of
heavy lifting” (Tr. at 311).
Plaintiff also indicated that he
worked in heavy construction and did not feel he could “go back
and do this because of his recurrent problems” (Tr. at 311).
As
a result, he was “in the process of trying to find a different
line of employment.” (Tr. at 311).
Upon physical examination,
plaintiff had normal mood and affect and was alert and oriented
(Tr. at 311).
Plaintiff ambulated “without difficulty,” but had
a decreased range of motion in the cervical spine (Tr. at 311).
X-rays showed “good bony fusion taking place” and disk spaces
“appear to be doing well” (Tr. at 311).
“From a surgical
standpoint, he appears to be coming along well.” (Tr. at 311).
Dr. Khoshyomn urged physical therapy again, but plaintiff again
declined despite his admission that he had not been “diligent”
about home exercises (Tr. at 311).
On August 20, 2007 -- one week before he applied for
disability benefits -- plaintiff reported to Dr. Schmidt that he
had memory disturbances, which he attributed to “several
accidents” during which he had hit his head “fairly hard” (Tr. at
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315-316).
Plaintiff also said he was “depressed at times, moody,
basically frustrated over his orthopedic doctor stating he needs
to quit the physical type work he has been doing, but his
disturbed memory limits other desk-type work also.”
Without
performing any tests whatsoever, Dr. Schmidt assessed memory
loss, head injury history, daily mixed headaches, chronic neck
and knee arthritis, and underlying depression.
Dr. Schmidt
prescribed Celexa for depression and Aricept for memory
disturbances.
Because plaintiff requested it, Dr. Schmidt gave
him an injection of Toradol for headache relief.
On August 27, 2007, plaintiff filed his application for
disability benefits.
On September 25, 2007, plaintiff saw Dr. Schmidt for a
“check up” (Tr. at 314).
Plaintiff reported that Celexa was
helping with depression although he had run out of pills one week
before the appointment.
Plaintiff again claimed he had several
head injuries that involved “brain swelling” and said that
Aricept had not helped with memory issues.
Plaintiff was
described as an “alert, pleasant, non-ill appearing male.”
Despite performing no tests at all, Dr. Schmidt assessed chronic
pain, neck and knee arthritis, memory disturbance, head injury
history, and depression.
Celexa was restarted and plaintiff was
asked to return in five weeks.
Dr. Schmidt also gave plaintiff
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prescriptions for OxyContin 20 + 40 mg and Oxy-IR “which are due
in one week.”
On November 6, 2007, State agency psychologist, Kenneth
Burstin, Ph.D., completed a psychiatric review assessment (Tr. at
317-328).
He concluded that plaintiff had a non-severe medically
determinable impairment of depression that improved on medication
(Tr. at 327).
He also noted that the medical record did not
support the claim of head injury, to which plaintiff attributed
memory deficits (Tr. at 327).
Dr. Burstin opined that plaintiff
had mild restrictions in activities of daily living; mild
difficulties in social functioning; mild deficiencies in
concentration, persistence, or pace; and no episodes of
decompensation of extended duration (Tr. at 325).
That same day,
plaintiff’s application for disability benefits was denied.
On November 27, 2007, plaintiff returned to Dr. Schmidt for
a pain medication refill and a letter supporting disability (Tr.
at 363).
Plaintiff apparently had stopped taking Celexa, his
depression was “stable,” and Celexa was not refilled.
“[R]efill
prescriptions for oxyContin 20 mg #60, 40 mg #60, Oxy-IR 5 mg
#120 all dated today per patient request.
Will also dictate
letter to Social Security Disability on his behalf.”
That same day, November 27, 2007, Dr. Schmidt wrote a letter
to whom it may concern:
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Mr. Duncan sustained significant compression fractures of
his VI and VII vertical [sic] vertebrae in a fall from a
height in November 2006. Since then he has had persisting
neck pain and headaches making it impossible to sit for any
duration or stand and move about for any duration either.
He also notes memory disturbance, more so since the fall
even and depression. With these symptoms plus his chronic
pain medications he would find it not possible to maintain
steady gainful employment of either desk work or active
physical labor.
(Tr. at 335).
On December 6, 2007, plaintiff requested a hearing by an
administrative law judge (Tr. at 93).
On Friday, January 4, 2008, plaintiff saw Dr. Schmidt “for
review of disability form to be completed” for the hearing
plaintiff said was scheduled three days hence, and complaining of
a rash and cold symptoms (Tr. at 362).
Dr. Schmidt performed a
physical exam of plaintiff’s neck (finding it supple without
adenopathy [enlargement of the lymph node] - no mention was made
of neck pain, range of motion, stiffness, tenderness, or any
other neck condition related to plaintiff’s impairment), lungs,
heart, and torso skin.
He did not examine plaintiff’s knee.
He
and assessed “scarlatina rash suspect” and “chronic neck and knee
pain - disability visit”.
Plaintiff “noted” more pain recently;
therefore, Dr. Schmidt “allow[ed] increase adding Oxycontin 20 mg
b.i.d. [twice a day] to his 20 + 40 mg b.i.d. current schedule
#50 only as his refill is just here December 27 [eight days ago]
and continue he [sic] Oxy IR 5 mg breakthrough pills.”
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Dr.
Schmidt completed plaintiff’s disability form.
In that questionnaire completed by Dr. Schmidt on January 4,
2008, he assessed plaintiff’s ability to perform certain workrelated physical functions (Tr. at 337-41).
He estimated
plaintiff could occasionally lift and/or carry up to 20 pounds,
but could never carry anything heavier than 20 pounds and could
not frequently carry any weight.
When asked to indicate the
signs, symptoms or medical findings supporting these conclusions,
Dr. Schmidt wrote, “chronic neck pain.”
He found that plaintiff could sit for a maximum of two hours
per day, stand for a maximum of two hours per day, walk for a
maximum of two hours per day, and “work” for a maximum of two
hours per day.
There is no definition of “work” on this form.
When asked to indicate the signs, symptoms or medical findings
supporting these conclusions, Dr. Schmidt wrote, “Pts neck pain
makes it impossible to sit still or stand still for longer than
1/2 to one hour at any one interval.”
He found that plaintiff could use his hands for repetitive
grasping and fine manipulation but could not push or pull.
When
asked to indicate the signs, symptoms or medical findings
supporting these findings, Dr. Schmidt wrote, “the pushing/
pulling repetitively would aggravate neck pain.”
Dr. Schmidt
found that plaintiff could operate foot controls with his right
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leg but not his left.
When asked to indicate the signs, symptoms
or medical findings supporting these conclusions, Dr. Schmidt
wrote, “Pt also has chronic knee arthritis and prior knee
surgeries (left side)”.
Dr. Schmidt found that plaintiff could never bend, squat,
crawl, climb, reach above, stoop, crouch, or kneel.
When asked
to indicate the signs, symptoms or medical findings supporting
these findings, he wrote, “neck injury and pain and knee pain”.
He found that plaintiff could have no exposure at all to
unprotected heights, moving machinery, marked temperature
changes, or driving automotive equipment.
He could, however,
occasionally be exposed to dust, fumes, gases and noise.
When
asked to indicate the signs, symptoms or medical findings
supporting these conclusions, Dr. Schmidt wrote, “see above”.
Dr. Schmidt indicated that plaintiff’s pain is “severe” and
that he has a medically determinable physical impairment which
could be expected to produce pain.
When asked to list the
medically determinable physical impairments, Dr. Schmidt wrote,
“c-spine post traumatic arthritis - injury Nov. 2006; several
closed head injuries ÷ suspect related to memory disturbance
now”.
The form states, “From observable signs and your knowledge
of patient, please indicate the severity of pain [he wrote,
“severe”], duration of pain [he wrote, “hours”], frequency of
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pain [he wrote, “multiple times through the day”].”
When asked
if there were “objective indicators of pain” such as muscle
atrophy, reduced range of motion, motor disruption, muscle spasm,
sensory disruption, or other, Dr. Schmidt left all of those
choices blank.
The next question asked for subjective signs; and
Dr. Schmidt checked complaints of pain, sleeplessness, poor
interpersonal relationships, and irritability.
When asked what limitations were imposed on the patient in
walking, standing, lifting, bending, sitting, pace and stamina,
Dr. Schmidt wrote, “see prior answers.”
When asked what
limitations were imposed in concentrating, remembering,
reasoning, and following instructions, Dr. Schmidt wrote,
“affected by chronic pain and pain medications, patient has
difficulty remembering details.”
When asked what limitations
were imposed in interacting with others, socializing, personal
hygiene and other psychological effects, Dr. Schmidt wrote, “not
affected too much.”
Dr. Schmidt indicated that “sitting
prolonged, standing prolonged, bending” incite plaintiff’s pain
and “rest, lying down” relieve his pain.
The next question asked
what other pain relief measures have been recommended, i.e.,
physical therapy, bio feedback, pain management clinic, weight
loss, or diet, and what were the results.
Despite plaintiff
having refused physical therapy on several occasions, Dr. Schmidt
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left this blank.
Finally, the form asks, “Are there specific medical reasons
the patient should not work?”
Dr. Schmidt checked, “yes” and
wrote, “above mentioned chronic pain [illegible] (neck & knee),
both physical and mental limits”. (Tr. at 337-341).
On January 11, 2008, plaintiff saw Dr. Schmidt (Tr. at 360361).
Plaintiff reported crying for the past two days, increased
stress and anxiety, and poor sleep.
“Grandmother indicates his
girlfriend of 3 year relationship up and left him yesterday and
his grandmother was not at all supportive at the Social Security
hearings, also one of the clerks at the DFS office was a bit
harsh as well.
He got upset and flushed all of his OxyContin
down the toilet.
Is still taking Celexa 20 mg daily for
depression”.
Plaintiff cried throughout the 20-minute
appointment.
Dr. Schmidt did not perform any exam or testing.
he assessed:
1.
Acute stress reaction, nervous break.
2.
Contributing factors - girlfriend relationship breakup,
disability frustrations, chronic neck and knee pain,
family stressors.
Dr. Schmidt recommended plaintiff go to the Rolla Stress
Center, but plaintiff “currently declines/refuses”.
Dr. Schmidt
prescribed Ativan for anxiety, he increased plaintiff’s Celexa,
he refilled plaintiff’s OxyContin and Oxy-IR since plaintiff
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claimed to have flushed his down the toilet.
On January 21, 2008, plaintiff reported to Dr. Schmidt that
he was not doing better, but his family thought that he was (Tr.
at 358).
He reported having been out of medication for the past
three days.
“His grandmother, private from interaction with
patient now, expresses concern for him acting sleepy a lot but
worried that he is on too much pain medication.
absolutely sure about drug use”.
She . . . is
Dr. Schmidt observed that
plaintiff had some slow reactions and mild speech slurring,
although he was interactive.
Dr. Schmidt reduced plaintiff’s
dose of Ativan and refilled plaintiff’s Oxycontin “40 mg only
p.o. [by mouth] B.I.D. [twice a day] #20 (as grandmother is
paying for his medications and can only afford supply until end
of month).
Also, Oxy IR 5 mg 2 p.o. q [every] 12 hours p.r.n.
[as needed] breakthrough pain #40.
The patient accepts the
Oxycontin lower dose of 40 mg only rather than 60 or even 80 mg
b.i.d. but states he will ‘not be able to do anything other than
lay [sic] on the couch all day.”
Plaintiff saw Dr. Schmidt on February 1, 2008, for a follow
up on stress and depression (Tr. at 357).
more crying spells the last three days.
Plaintiff reported
He ran out of Ativan and
his grandfather gave him two Lorazepam which calmed him.
“His
neck and knee pain are stable.”
Dr.
“Formal exam deferred.”
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Schmidt assessed depression with anxiety features, chronic pain,
and rash, resolved.
He refilled plaintiff’s OxyContin 40 mg, Oxy
IR, and Ativan, and he increased plaintiff’s Celexa to 60 mg
daily.
“[Plaintiff’s] Grandmother anticipates hearing if he will
get Medicaid coverage in the next week or so and have discussed
counseling through Pathways if this happens, otherwise followup
here in one month.
Also, still the option of the Rolla Stress
Center.”
By February 28, 2008, plaintiff reported better mood and
anxiety (Tr. at 356).
and anxiety.
“Here for followup and better with mood
He even would like to try reducing Oxycontin from
40 to 20 mg twice daily, still finds the breakthrough IR pills
helpful.
He notes to his grandmother, also here today that he
stopped Celexa pills as well.
They recently got notice of
disability determination denial.”
Dr. Schmidt performed no exam.
He assessed depression with anxiety, improving; chronic cervical
spine and left knee arthritis pain; and disability claim
followup.
Plaintiff’s Ativan, OxyContin, and headache medication
(Trazodone and Elavil) prescriptions were refilled; he was told
to remain off the Celexa.
A little over two months later, on May 6, 2008, plaintiff
returned to Dr. Schmidt for a medication consult (Tr. at 355).
Plaintiff had complaints of more neck pain and stiffness and
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wanted to return to 40 milligrams of Oxycontin.
His mood was
stable being off Celexa and his nerves were stable on Ativan.
Dr. Schmidt deferred formal exam and wrote plaintiff a
prescription for the increased OxyContin as requested.
Two months later, on July 8, 2008, plaintiff reported some
intermittent fluid retention in his legs below the knees “when he
is up and attempting to work around the home place such as
weed-eating around the lake” (Tr. at 354).
Plaintiff said he
likes to add salt to his food, he eats junk food, and he drinks
six to eight regular Dr. Peppers per day.
On examination,
plaintiff’s legs appeared “stable” with just trace pedal edema.
Plaintiff did not mention neck pain or knee pain.
Plaintiff was
advised to reduce salt, starch, sweets, and soft drinks.
He was
started on HCTZ, a diuretic, and Dr. Schmidt wrote a new
prescription for Oxy-IR.
Nine days later, on July 17, 2008, Dr. Schmidt observed that
plaintiff had stopped taking Celexa for depression and Ativan for
anxiety “a while back” (Tr. at 351-352).
more moodiness and temper outbursts.
Plaintiff was reporting
“He notes more neck and
knee pain even taking Oxycontin 40 mg twice daily which he has
been on several years.
He recalls being on IV morphine in the
hospital in the past with good tolerance.”
a formal exam.
Dr. Schmidt deferred
He assessed depression with anxiety features and
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chronic neck, knee pain, degenerative arthritis.
He restarted
plaintiff’s Celexa and Ativan, he switched OxyContin to MS Contin
(morphine) 60 mg twice a day, and he noted that plaintiff should
still have Oxy-IR pills because his last prescription had just
been written nine days earlier.
Two weeks later, on July 31, 2008, plaintiff was seen by
someone1 in Dr. Schmidt’s office (Tr. at 353).
Plaintiff
complained of nausea, vomiting and diarrhea for three days.
“[T]hinks it may be from morphine.
He switched a couple weeks
ago from OxyContin to morphine because the OxyContin was not
working as well.”
Plaintiff had no abdominal tenderness and no
indication of appendicitis (negative obturator sign left and
right).
He was assessed with gastroenteritis.
“Before he
becomes dehydrated I would like to get some medicine in him and
have told him there is the option of having an IV with fluids as
well as IV medications, he does not wish that.
His mother is
with him and states she will take him home if we will give him a
shot.”
Plaintiff was given a shot of Phenergan for nausea as
well as a prescription for Phenergan capsules.
On August 7, 2008, plaintiff saw Dr. Schmidt for a follow up
(Tr. at 350).
Plaintiff reported he had spent three days in the
1
Plaintiff indicates he saw Dr. Barton L. Warren; however, I
see no signature, initials, etc., which would indicate what
doctor treated plaintiff this day.
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hospital for a small bowel obstruction most likely due to
morphine pills.
Plaintiff’s exam was normal.
His mother
completed a mental health questionnaire noting “yes” to eight
screening questions for depression.
Dr. Schmidt assessed small
bowel obstruction, morphine intolerance, chronic pain and
depression.
He refilled plaintiff’s Oxy-IR.
“Will pursue
getting drug assistance for trial of Wellbutrin antidepressant
noting he also smokes.
Have also recommended they pursue
caseworker on status of his Medicaid application and disability
still in process.”
On September 13, 2008, plaintiff was admitted to Cox Health
Systems after having suffered a gunshot wound (Tr. at 368-397).
Under history of present illness, the record says, “The patient
is a 33-year-old gentleman with a history of traumatic brain
injury after falling from a tree stand.
forgetfulness.
This has led to some
He was working with his .22 gauge weapon at home
and inadvertently fired a hollowpoint bullet into his left leg
when the dog jumped on him. . . .
CT scan shows significant
bullet fragments in near proximity to the vessel but no
compromise or extravasation of the vessels.”
Plaintiff reported
taking no medications currently, despite having gotten a refill
of Oxy-IR a month earlier.
in a generous fashion.”
“He is known to use pain medications
Plaintiff denied chest pain, shortness
22
of breath, focal neurologic deficit.
and some memory loss problems.
dependence.
“He has some forgetfulness
Informally noted chemical
All others negative.”
On exam plaintiff’s neck was stiff.
oriented, friendly and cooperative.
Plaintiff was alert,
Because plaintiff’s blood
vessels were not seriously impacted by the gunshot, Robert
Vorhies, M.D., recommended symptomatic wound care and a clinic
exam for follow up.
Plaintiff was discharged on September 15,
2008, in stable condition, activity “as tolerated.”
His
discharge medications included Oxy IR, OxyContin 40 mg twice a
day, Lorazepam and Amitriptyline.
On September 23, 2008, plaintiff saw Dr. Schmidt for a
follow up (Tr. at 348).
Plaintiff complained that his pain was
“not relieved too well” and at times he could not curl up his
toes.
He was assessed with chronic pain.
Despite plaintiff
having gotten prescriptions at the hospital eight days earlier
for OxyContin and Oxy-IR, Dr. Schmidt refilled plaintiff’s
OxyContin, changed Oxy-IR to Roxicodone, and started Neurontin.
Three days later, on September 26, 2008, Dr. Schmidt wrote a
letter to whom it may concern (Tr. at 343).
Christopher continues to have memory disturbance. He
sustained a life-threatening injury recently when he was
cleaning his gun. He had made mental note to unload the
firearm, but then forgot to do so and when his pet dog
jumped up on a couch it dislodged the gun firing it into his
leg causing significant bleeding. He saved his life by
23
quickly applying a tourniquet to the leg. He has described
having memory disturbance before this as well and along with
neck and low back pain, knee pain and now thigh pains from
the gunshot wound continues to not be able to work
gainfully.
On October 10, 2008, plaintiff saw Dr. Schmidt for a follow
up, noting his left thigh was improving (Tr. at 347).
“He would
like to return to the OxyContin 20 mg b.i.d. schedule.
He did
not find Oxycodone worked any better for breakthrough pain and
would like to return to Oxy-IR 5 mg as well.
He thinks the
Neurontin 300 mg may be helping a bit thus far, but just recently
increased it from once daily to b.i.d. [twice a day].” Dr.
Schmidt refilled plaintiff’s OxyContin, refilled his Oxy-IR, and
increased plaintiff’s Neurontin.
On November 6, 2008, plaintiff saw Dr. Schmidt for a follow
up and noted his left thigh was “healing well” (Tr. at 346).
Other than occasional shooting pain down his left leg, he had “no
other acute health concerns.”
plaintiff’s thigh.
Dr. Schmidt did not examine
He assessed the gunshot wound as stable.
He
refilled prescriptions for plaintiff’s OxyContin, Oxy-IR,
Neurontin, Trazodone, and Elavil.
On November 14, 2008, plaintiff saw Dr. Schmidt regarding
criminal charges (Tr. at 345).
Plaintiff reported that he had
been “served papers in court related to the altered prescription
for his Oxycontin” (Tr. at 345).
24
Although plaintiff stated that
he did not alter the prescription and was not sure how it
happened, Dr. Schmidt recalled plaintiff having admitted altering
the prescription.
On January 6, 2009, plaintiff was seen at Ozarks Medical
Center by Lisa King, FNP, with complaints of vomiting and
diarrhea (Tr. at 406).
He was assessed with acute viral
gastroenteritis with dehydration.
On February 6, 2009, plaintiff saw Dr. Schmidt for a refill
of pain medication (Tr. at 405).
Plaintiff requested additional
pain medication because “his grandfather ha[d] been working him
harder cutting firewood, etc.” (Tr. at 405).
Plaintiff also
reported pain from a slip and fall on an icy porch “hitting the
edge of the step across the shoulders” (Tr. at 405).
to the shoulders was noted (Tr. at 405).
No injury
Plaintiff also reported
a sharp pain in his left calf muscle, but no swelling was
observed (Tr. at 405).
Dr. Schmidt increased plaintiff’s
OxyContin and refilled his Oxy-IR.
Two weeks later, on February 17, 2009, plaintiff returned
asking for an early refill of Oxy-IR claiming he had actually
“landed flat on his back” when he slipped on the ice (Tr. at
403).
Despite Dr. Schmidt finding no tenderness and an otherwise
normal exam, he filled plaintiff’s Oxy-IR early as requested.
25
In a letter dated April 28, 2009, to whom it may concern,
Dr. Schmidt wrote:
Chris notes ongoing daily pain or stiffness in the left
knee2 related to degenerative arthritis. He also notes
daily pain in his neck related to compression fractures of
C6 and C7 from a fall from a height November 2006. He has
also had a number of head injuries and notes significant
memory disturbance.
Of all these reasons he has been unable to maintain gainful
employment with either physical activity or light desk duty.
(Tr. at 366).
On May 21, 2009, Dr. Schmidt noted that plaintiff needed an
early refill of Oxy-IR because plaintiff’s “back hurts worse
usually after physical activity, yard work, longer trips to
recently see his grandfather in the hospital at lake, etc.” (Tr.
at 401).
Formal exam was deferred.
Dr. Schmidt assessed chronic
cervical spine arthritis, left knee arthritis, and “smoker”.
He
refilled plaintiff’s Oxy-IR and also gave him a second
prescription to fill in 30 days.
On June 5, 2009, plaintiff saw Michael Wells, D.O., in Dr.
Schmidt’s office complaining of low back pain (Tr. at 399-400).
Plaintiff said his knee problem was “stable.”
He requested a
refill of Oxy-IR “as he says that allows him to at least
function.”
Dr. Wells performed a physical exam which was normal.
2
Plaintiff had not actually complained of knee pain since
July 17, 2008 - nine months earlier - and coincidentally, that
was on a day when he asked Dr. Schmidt to write another letter in
support of his disability application.
26
He observed that plaintiff could ambulate without difficulty
although assuming the sitting position seemed to cause him some
low back pain.
L3 to L5.
He had point tenderness in the lumbar spine from
Plaintiff had x-rays which were normal and showed no
fractures, dislocations, or arthritic processes.
The disk space
was fairly well maintained and there were no congenital defects.
Dr. Wells assessed degenerative joint disease in the cervical
spine and knee, chronic pain, and rule out disk disease of the
lumbar spine.
He told plaintiff to continue his previous
medications.
He refilled the Oxy-IR with “no refill.” and
referred plaintiff to an orthopedist for evaluation of his low
back.
On June 12, 2009, plaintiff admitted during an appointment
for pain medication refill that he took excessive pain medication
beyond the amount prescribed: “Admits he sometimes takes 3–4 Oxy
IR (immediate release) 5 mg pill per dose” (Tr. at 398).
He
reported trying to stay active mowing the yard, but he was “not
doing any active low back exercise program.”
He was given a back
exercise sheet and Dr. Schmidt encouraged him to do these
exercises.
C.
SUMMARY OF TESTIMONY
During the June 25, 2009, hearing, the following individuals
testified:
plaintiff, his grandmother Dorothy Duncan, and
27
vocational expert Delores Gonzales.
1.
Plaintiff’s testimony.
At the time of the hearing, plaintiff was 34 years of age,
5’9” tall, 178 pounds, and had been divorced for about seven
years (Tr. at 31, 33).
He had one child whom he saw every other
weekend and for three months during the summer (Tr. at 31).
Plaintiff lived alone in a double-wide mobile home (Tr. at 32).
There were three steps leading up to the home which sits on his
grandmother’s farm (Tr. at 32).
Plaintiff had lived in the
mobile home for ten or 11 years (Tr. at 32).
The farm was about
160 acres and was used by the family for hunting (Tr. at 40).
Plaintiff’s grandmother lived across the road from him (Tr. at
65).
She takes plaintiff to his doctor appointments because she
wants to go (Tr. at 66).
Plaintiff sometimes eats at her house,
she helps with dishes sometimes, and she vacuums sometimes (Tr.
at 66).
Plaintiff mainly takes care of his own home (Tr. at 66).
Plaintiff has a high school education (Tr. at 33).
receiving food stamps and was on Medicaid (Tr. at 34).
He was
He
previously worked as a heavy equipment operator (Tr. at 34-35).
Plaintiff last worked in 2006 and left his job when he broke his
neck (Tr. at 36).
Plaintiff fell out of a tree stand while deer
hunting and fell 25 feet (Tr. at 36-37).
Before his job as heavy
equipment operator, plaintiff drove a concrete truck for about
28
four years (Tr. at 37).
He drove a truck for a propane company,
and he also spent five years working as a corrections officer at
Algoa Correctional Center in Jefferson City (Tr. at 38-39).
Each
time plaintiff switched jobs, it was for better pay (Tr. at 39).
The trucks he drove were stick shift trucks with a clutch (Tr. at
64).
For about a month and a half in 2007 plaintiff worked as a
welder and he helped put docks together (Tr. at 41).
This was
six months after he broke his neck and he had tried to go back to
work (Tr. at 42).
Although he worked eight hours a day, he did
not work full 40-hour weeks (Tr. at 61).
He quit because he was
not able to do it (Tr. at 41-42).
The ALJ observed that plaintiff was very tan, and plaintiff
said he walks around outside or sits in the yard watching his two
dogs run around (Tr. at 42).
at 42).
He does not like to be inside (Tr.
Plaintiff has a car but he does not drive it because he
has no insurance and the car is not registered (Tr. at 43).
His
mother or grandparents help him get around (Tr. at 43).
Plaintiff has had back pain since he broke his neck, and it
has gotten worse (Tr. at 43).
Plaintiff had surgery when he
broke his neck -- the doctors took a piece of bone out of his hip
to remake part of the vertebrae in his neck (Tr. at 44).
Plaintiff testified he was taking Oxycodone and OxyContin for his
29
pain and that he had been on the pain pills since he was 21
because of four knee surgeries (Tr. at 44).
Plaintiff had two
arthroscopic surgeries and two regular surgeries on his left knee
(Tr. at 44).
The surgeries were about 12, 10, 8 and 6 years ago
(Tr. at 44-45).
Plaintiff always has a limp due to his knee, and
he cannot carry anything because of the knee strain (Tr. at 45).
Sometimes it swells up to two or three times its normal size and
plaintiff cannot walk at all (Tr. at 45).
He was able to get the
above jobs driving tick shift trucks despite having this knee
problem (Tr. at 46).
About a year before the hearing, plaintiff was shot in the
left leg with a .22 (Tr. at 46).
He was sitting on his couch
cleaning a loaded rifle when his dog jumped on the couch (Tr. at
46-47).
Plaintiff suffers from depression because he does not
have any money (Tr. at 48).
(Tr. at 48).
He takes Lorazepam and Trazodone
He has nerve pain in his foot and leg pain, and
that is another reason he takes the pain medication (Tr. at 49).
Plaintiff told the ALJ he has no side effects from his medication
(Tr. at 49).
He later testified on questioning by his attorney
that his pain medication causes him to be tired and he takes naps
during the day for an hour or two (Tr. at 67).
He gets up every
couple of hours at night due to discomfort (Tr. at 68).
30
Plaintiff has a TENS unit that he uses on his leg and knee,
but he has never used it on his back (Tr. at 50).
Plaintiff can stand for 10 to 15 minutes, walk about a half
a mile (for 10 to 15 minutes), and sit for 30 minutes at a time
(Tr. at 51).
Plaintiff can lift a gallon of milk (Tr. at 52).
He goes camping once in a while with his 12-year-old daughter on
his grandmother’s property on the Gasconade River (Tr. at 52).
Plaintiff’s 12-year-old takes care of him while she is with him
over the summer (Tr. at 53).
Plaintiff smokes a pack of cigarettes per day (Tr. at 55).
Plaintiff rarely drinks (Tr. at 56).
and he drives (Tr. at 56).
He has a driver’s license
Plaintiff shops once a week for
beverages, milk and small items; does a little cooking in the
microwave; does his own laundry; and takes care of his half-acre
yard with a riding lawn mower (Tr. at 56-57, 58).
Plaintiff mows
half the yard one day and the other half a couple days later (Tr.
at 58).
Plaintiff is unable to work because no one can depend on him
to be there five days a week due to his pain (Tr. at 62).
Plaintiff rated his pain as a 7 or 8 (with 10 being hospitalizing
pain) even with his pain medications and lack of activity (Tr. at
63).
Rain and cold weather increase his pain (Tr. at 64).
31
2.
Dorothy Duncan’s testimony.
Ms. Duncan’s house is about three blocks’ distance from
plaintiff’s house, and she sees him every day (Tr. at 70).
Plaintiff cries sometimes (Tr. at 70).
One time Ms. Duncan sat
with him all afternoon and night while he cried and then took him
to the doctor the next day (Tr. at 70-71).
Plaintiff has
problems remembering appointments and does not remember what
doctors tell him (Tr. at 71).
When asked if there was anything
else about him that had changed since he was healthier, Ms.
Duncan said,
Money problems. He doesn’t, he doesn’t realize a dollar or
anything anymore. I mean, we could give him money, if we
gave him $20 to go buy us a loaf of bread, he wouldn’t bring
us back anything.
(Tr. at 72).
Plaintiff’s counsel questioned Ms. Duncan further,
inquiring whether she now, because of that, questioned
plaintiff’s judgment and perhaps thought he was acting more
childlike (Tr. at 72).
Ms. Duncan testified that when plaintiff shot himself in the
leg, he did not seem to be suffering from depression (Tr. at 73).
Upon further questioning, she said “I, you know, I don’t know, I
didn’t have time to really think, I don’t guess, I was so scared.
And, of course, we got, they flew him into the hospital and I
guess maybe I thought it wasn’t an accident really.
maybe because of the depression. . .” (Tr. at 74).
32
I thought
3.
Vocational expert testimony.
Vocational expert Delores Gonzales testified at the request
of the Administrative Law Judge.
The first hypothetical involved a person who could lift 20
pounds occasionally and 10 pounds frequently; stand or walk for
six hours per day; sit for six hours per day; occasionally climb
ramps and stairs, stoop, kneel, or crouch; never crawl or climb
ropes, ladders or scaffolds; and must avoid concentrated exposure
to extreme cold, wetness and vibration (Tr. at 78-79).
The
vocational expert testified that such a person could not perform
plaintiff’s past relevant work (Tr. at 79).
However, the person
could work as an usher, D.O.T. 344.677-014, with 101,530 in the
nation, 2,820 in Missouri, and 420 in non-metropolitan central
Missouri (Tr. at 79).
He could be a fast food worker, D.O.T.,
311.472-010, with 2,708,840 in the nation, 84,820 in Missouri,
and 6,520 in non-metropolitan central Missouri (Tr. at 79).
The second hypothetical involved a person with the same
limitations as the first except that the person could lift only
10 pounds occasionally and would need a sit/stand option with the
ability to change positions frequently.
The person should avoid
even moderate exposure to extreme cold, wetness and vibration
(Tr. at 79-80).
The vocational expert testified that such a
person could be an order clerk, D.O.T. 209.567-014, with 254,520
33
in the nation, 7,130 in Missouri, and 820 in non-metropolitan
central Missouri (Tr. at 80).
The person could also work as a
callout operator, D.O.T. 237.367-014, with 67,400 in the nation,
1,190 in Missouri, and 300 in non-metropolitan central Missouri
(Tr. at 80).
The third hypothetical involved a person with the same
limitations as in the second hypothetical but was limited to
understanding, remembering and carrying out simple instructions
and performing nondetailed tasks, could make simple work-related
decisions, and could perform work at a normal pace without
production quotas (Tr. at 80).
The vocational expert testified
that the order clerk and callout operator jobs would have quotas,
but the person could be a surveillance system monitor, D.O.T.
379.367-010, with 85,440 in the nation, 2,020 in Missouri, and
200 in non-metropolitan central Missouri (Tr. at 80).
The fourth hypothetical involved a person with the same
limitations as the third hypothetical but who would have up to
two absences per week due to pain and could not concentrate or
pay attention for longer than two hours at a time (Tr. at 81).
The vocational expert testified that such a person could not work
(Tr. at 81).
The final hypothetical involved a person who could not
remember any instructions of any kind (Tr. at 82).
34
The
vocational expert testified that such a person could not work
(Tr. at 82).
V.
FINDINGS OF THE ALJ
Administrative Law Judge Victor Horton entered his opinion
on July 15, 2009 (Tr. at 11-22).
Step one.
Plaintiff has not engaged in substantial gainful
activity since his alleged onset date (Tr. at 13).
His
subsequent earnings were below the substantial gainful activity
level (Tr. at 13).
Step two.
Plaintiff has status/post fusion surgery on the
cervical spine and status/post surgeries on the left knee, severe
impairments (Tr. at 13).
Plaintiff’s mental impairment is not
severe (Tr. at 13-14).
Step three.
Plaintiff’s impairments do not meet or equal a
listed impairment (Tr. at 14).
Step four.
Plaintiff retains the residual functional
capacity to perform light work (Tr. at 14).
He can lift up to 20
pounds occasionally and up to ten pounds frequently; sit for six
hours per day; stand or walk for six hours per day; occasionally
climb stairs or ramps, stoop, kneel, or crouch; cannot climb
ropes, ladders or scaffolds or crawl.
He must avoid even
moderate exposure to extreme cold, wetness and vibration (Tr. at
14).
Plaintiff’s subjective complaints of disabling symptoms is
35
not credible (Tr. at 15-20).
With this residual functional
capacity plaintiff cannot return to his past relevant work (Tr.
at 20).
Step five.
Plaintiff can perform other jobs in the local
and national economies which exist in significant numbers, such
as usher or fast food worker (Tr. at 21-22).
VI.
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that
plaintiff’s testimony was not credible.
The credibility of a plaintiff’s subjective testimony is
primarily for the Commissioner to decide, not the courts.
v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988);
830 F.2d 878, 882 (8th Cir. 1987).
Rautio
Benskin v. Bowen,
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
36
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.
1984).
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
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).
37
The specific reasons listed by the ALJ for discrediting
plaintiff’s subjective complaints of disability are as follows:
The claimant’s allegations regarding pain in the neck are
partially credible. Clinical evidence does indicate that
the claimant was previously treated for a cervical fracture,
which would account for pain in this area. However,
symptoms, including pain, will be determined to diminish the
capacity for basic work activities only to the extent that
the alleged functional limitations and restrictions due to
symptoms such as pain, can reasonably be accepted as
consistent with the objective medical evidence and other
evidence. 20 CFR 404. 1529(c)(4) and 416.929(c)(4). Reduced
joint motion, muscle spasm, sensory deficit and motor
disruption are useful indicators to assist in making
reasonable conclusions about the intensity and persistence
of symptoms and the effect those symptoms, such as pain, may
have on the ability to work. 20 CFR 404. 1529(c)(2) and
416.929(c)(2).
The objective evidence does not support a finding that the
claimant is limited by pain to the degree he alleges. Those
who have examined the claimant have not identified an
underlying basis for pain at this level of severity nor has
comprehensive testing indicated such.
The claimant’s primary care physician has provided the
claimant with ongoing care for his pain. Treatment has
consisted mostly of refilling prescriptions for strong
narcotic medication. There is evidence that the claimant
may be motivated by more than just a need for pain relief to
seek such medication. At a visit with Dr. Schmidt on
January 16, 2007, the claimant reported that his OxyContin
and Oxycodone pills had been stolen from his vehicle while
he was at the grocery store. Dr. Schmidt observed that the
claimant had “claimed stolen medications at least twice
before”. This suggests that the claimant might have become
addicted to his prescription medications. At a visit with
Dr. Schmidt on January 21,2008, the claimant’s grandmother
expressed concern that the claimant was on too much pain
medication. Notes show that the claimant often reported
that he had run out of medication earlier than expected.
* * * * *
38
The claimant’s own failure to comply with treatment
recommendations may also play a role in any delay in his
anticipated progress. Mr. Strecker observed that the
claimant had been referred for physical therapy but had
declined as he requested to handle this himself at home.
However, when asked about this, the claimant admitted that
he had not been as diligent about this as he probably needed
to be. A claimant who fails to follow prescribed treatment
for a remediable condition which would restore the ability
to work, without good reason, is not under a disability.
Roth v. Shalala, 45 F.3d 279, 282 (8th Circuit 1995); Weber
v. Harris, 640 F.2d 176, 178 (8th Circuit 1981).
* * * * *
An examination of the claimant’s daily activities also
provides evidence that he is capable of functioning at a
level that would not preclude sustained work activity. The
claimant testified that he lived by himself in a double-wide
trailer. He said that he does some cooking, laundry, and
lawn-mowing using a riding lawn mower. He said that he
takes his 12-year old daughter camping sometimes on the
Gasconade River, which would likely entail some lifting,
hiking, and possibly use of a water craft. At the hearing,
the claimant testified that . . . he never used a weed-eater
as a neighbor was hired to perform this task. However at a
visit in July 2008 he told Dr. Schmidt that he had been
weed-eating around the lake. Such inconsistent statements
do not bode well for the claimant’s general credibility. At
a visit in May 2007, Dr. Schmidt observed that the claimant
could “move his neck fairly well although [he] was laid up
for several days after participating in [a] benefit golf
tournament at Tan-Tar-A recently”. At his visit with Mr.
Strecker in August 2007, the claimant reported some
exacerbation of symptoms after performing heavy lifting
while helping friends move a hot tub. The claimant has
indicated that he is able to drive and do some of his own
shopping.
(Tr. at 18-20).
Plaintiff argues that the ALJ erred in considering
plaintiff’s daily activities because the ALJ did “not seek
information regarding any difficulties the Plaintiff may be
39
having in fully performing any of those activities.”
This
argument is without merit.
The record shows that plaintiff reported to his treating
doctors that he could move his neck fairly well (May 4, 2007), he
had participated in a benefit golf tournament at Tan-Tar-A (May
4, 2007), he had been getting along well for the last six months
(August 10, 2007), he had been helping his friends move a hot tub
(August 10, 2007), he had been doing a lot of heavy lifting
(August 10, 2007), he had been doing work around the home place
(July 8, 2008), he had been weed-eating around the lake (July 8,
2008), he was cleaning a loaded gun which at least suggests that
he had been using the gun since he lives alone (September 13,
2008), his grandfather had been working him harder cutting
firewood, etc. (February 6, 2009), he had been making longer
trips to see his grandfather in the hospital at the lake
(February 6, 2009), and he was trying to stay active mowing the
yard (June 12, 2009).
Regardless of whether plaintiff had any
difficulty doing these things, they are completely inconsistent
with the disabling symptoms to which he testified.
In addition to his daily activities, I note that Dr.
Khoshyomn recommended physical therapy for plaintiff’s neck a few
months after his surgery and again the following year, but
plaintiff refused; the doctor who operated on plaintiff’s neck
40
released him to return to work with no work restrictions or
exertional limitations on February 9, 2007; Dr. Khoshyomn
observed that plaintiff ambulated without difficulty on August
10, 2007, despite his alleged knee problems; plaintiff’s claims
of head injury are not supported anywhere in the medical record;
Dr. Schmidt on multiple times recommended that plaintiff go to
the Rolla Stress Center but plaintiff refused; when plaintiff
went to the doctor complaining of fluid retention in his legs
after using a weed-eater and working around his home, he did not
even mention knee pain or neck pain; on August 7, 2008, when Dr.
Schmidt actually performed an exam on plaintiff, it was normal;
plaintiff continued to smoke throughout his years of treatment;
on September 13, 2008, when plaintiff went to the hospital with a
gunshot wound, he claimed to be taking no medications even though
he had just gotten a refill of his Oxy-IR, a narcotic, a month
earlier; plaintiff was discharged two days after his gunshot
wound in stable condition and with no exertional restrictions;
plaintiff apparently told Dr. Schmidt on September 26, 2008, that
he had to save his own life by quickly applying a tourniquet to
his leg, but the hospital records show that the wound did not
compromise any blood vessels and there is no mention anywhere in
the hospital records of a tourniquet or plaintiff using it to
save his life; on June 5, 2009, plaintiff described his knee
41
problem as stable; on June 5, 2009, Dr. Wells performed a
physical exam which was normal; on June 5, 2009, Dr. Wells
observed that plaintiff could ambulate without difficulty; on
June 5, 2009, x-rays of plaintiff’s back were normal.
The evidence in the record overwhelmingly supports the ALJ’s
finding that plaintiff’s subjective complaints of disabling
symptoms are not credible.
VII. OPINION OF DR. DANIEL SCHMIDT
Plaintiff argues that the ALJ erred in discounting the
opinion of treating physician Dr. Daniel Schmidt.
The ALJ had
this to say about Dr. Schmidt:
As for the opinion evidence, in a letter dated November 27,
2007, Dr. Schmidt observed that the claimant’s persisting
neck and headaches had made it “impossible to sit for any
duration or stand or move about for any duration ...”.
Other concerns were identified as memory disturbance and
depression. Dr. Schmidt concluded that with these symptoms
in conjunction with chronic knee pain, the claimant “would
find it not possible to maintain steady gainful employment
of either desk work or active physical labor”. In a
questionnaire dated January 4, 2008, Dr. Schmidt estimated
that the claimant could occasionally lift and/or carry up to
20 pounds, but could only sit/stand/walk for up to two hours
each function in an 8-hour workday. He indicated that the
claimant was limited by “chronic neck pain”. Dr. Schmidt
described the claimant’s pain as severe. The undersigned
has considered this opinion, but has accorded it little
weight in drawing conclusions as to the claimant’s remaining
work-related abilities. It seems likely that such opinion
was based more on the claimant’s subjective reports of
limitations than on actual clinical findings. Dr. Schmidt’s
progress notes do not suggest an individual who would be so
limited. At an outpatient visit on March 19, 2007, the
claimant reported that he was having intermittent numbness
in his left arm and loss of feeling in his left leg which
42
had caused him to fall twice three days earlier. Dr.
Schmidt observed that the claimant appeared to have full use
of arms and legs. He said that the claimant had walked in
the hallway without limping. The claimant had good range of
motion of his neck. At his next visit with Dr. Schmidt on
April 6, 2007, the claimant reported that his shoulder and
neck were better without further falling or numbness. It is
notable that in a report dated February 9, 2007, Dr.
Khoshyomn, the claimant’s surgeon opined that he was “very
happy with [the claimant’s] improvement at this point”
(approximately three months after cervical spine surgery).
He said that he would “release him at this point to return
to work”. He noted that the claimant was also “very
satisfied” with his improvement and progress.
(Tr. at 19).
A treating physician’s opinion is granted controlling weight
when the opinion is not inconsistent with other substantial
evidence in the record and the opinion is well supported by
medically acceptable clinical and laboratory diagnostic
techniques.
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005);
Ellis v. Barnhart, 392 F.3d 988, 998 (8th Cir. 2005).
If the ALJ
fails to give controlling weight to the opinion of the treating
physician, then the ALJ must consider several factors to
determine how much weight to give the opinion:
(1) the length of
the treatment relationship, (2) frequency of examinations, (3)
nature and extent of the treatment relationship, (4)
supportability by medical signs and laboratory findings, (5)
consistency of the opinion with the record as a whole, and (6)
specialization of the doctor.
20 C.F.R. § 404.1527(d)(2) - (5).
43
In this case the substantial evidence in the record as a
whole provides no support whatsoever for the opinions of Dr.
Schmidt.
Dr. Schmidt very rarely performed any type of
examination.
He deferred formal examination on March 6, 2007;
April 6, 2007; May 4, 2007; June 1, 2007; February 1, 2008;
February 28, 2008; May 6, 2008; July 17, 2008; November 6, 2008;
and May 21, 2009.
On March 19, 2007, Dr. Schmidt observed that plaintiff had
full use of his arms and legs, walked in the hallway without
limping even though plaintiff claimed to have suffered a loss of
feeling in his left leg causing him to fall multiple times; he
noted that plaintiff had told “stories” of recent falls and neck
discomfort which indicates even he did not believe plaintiff’s
subjective complaints; and he observed that plaintiff appeared to
have good neck motion.
On August 20, 2007 -- one week before plaintiff applied for
disability benefits -- he, for the first time, reported memory
disturbances which he attributed to several accidents during
which he had hit his head “fairly hard.”
There is no evidence in
any medical records to support these accidents, plaintiff never
mentioned them to any doctor before this date, and there was
neither observation nor complaint of any memory problems prior to
this visit.
Without performing any tests whatsoever, Dr. Schmidt
44
assessed memory loss, head injury history, and daily mixed
headaches - which pretty much word for word describes plaintiff’s
new subjective complaints.
On that same day, plaintiff, again
for the first time, reported that he was “depressed at times.”
That simple allegation was enough for Dr. Schmidt to diagnose
depression and prescribe an antidepressant.
On September 25, 2007 -- plaintiff’s first medical
appointment after filing for disability benefits -- he claimed he
had suffered several head injuries that he now said included
brain swelling.
Despite observing that defendant was an alert,
pleasant, non-ill appearing patient, and having performed no
tests at all, Dr. Schmidt diagnosed memory disturbance, head
injury history, and depression.
On January 4, 2008, Dr. Schmidt performed a rare physical
exam after plaintiff complained of cold symptoms.
Dr. Schmidt’s
exam did not cover any of the impairments that plaintiff claims
cause his disability.
When Dr. Schmidt examined plaintiff’s
throat, he did not make any mention of stiffness, tenderness,
decreased range of motion, complaints of neck pain on exam, or
any other symptom which would indicate that plaintiff had
problems with his neck.
On January 11, 2008, plaintiff and his grandmother reported
that plaintiff had been crying because his girl friend of three
45
years broke up with him.
Based solely on that, Dr. Schmidt
assessed “acute stress reaction, nervous break.”
Despite Dr. Schmidt’s opinion that plaintiff is completely
disabled due in part to his knee problem, Dr. Wells reported that
plaintiff said his knee problem was stable.
Dr. Schmidt’s
opinion that plaintiff cannot do anything physical or even a desk
job and is restricted in his ability to lift is belied by
plaintiff’s own testimony that he is able to do his own laundry,
which clearly involves lifting.
There is nothing in Dr. Schmidt’s medical records other than
(1) essentially normal observations when an exam was performed
(which was rare), (2) plaintiff’s own subjective complaints which
often changed from visit to visit, and (3) Dr. Schmidt’s
observations that plaintiff was not being truthful.
The
specialist who treated plaintiff for his neck injury released him
to return to work with no restrictions.
Dr. Schmidt, who is not
a specialist, found that plaintiff could not do so much as a desk
job.
Plaintiff was able to work jobs driving large stick-shift
trucks with a clutch, yet Dr. Schmidt found that plaintiff’s knee
problem would prevent him from doing any job whatsoever.
Clearly
Dr. Schmidt’s opinion is not consistent with the other evidence
in the record, nor is it supported by anything other than
plaintiff’s non-credible subjective complaints.
46
In addition to the above, I find that Dr. Schmidt
essentially acted as a drive-through restaurant specializing in
narcotics.
Whatever plaintiff asked for, plaintiff got:
On January 16, 2007, plaintiff told his third “story” of his
narcotic pain medication having been stolen out of his car.
Although the record indicates that Dr. Schmidt probably did not
believe this, he gave plaintiff new prescriptions for his
narcotic medication.
On March 6, 2007, plaintiff requested Trazodone and Dr.
Schmidt wrote him a prescription for Trazodone.
On March 19, 2007, plaintiff asked for an increase (by 20 mg
per dose) of OxyContin because he had suffered a loss of feeling
in his leg causing him to fall repeatedly.
Despite Dr. Schmidt
observing that plaintiff had full use of his arms and legs,
walked in the hallway without limping, had good neck range of
motion, and Dr. Schmidt referred to plaintiff’s “story” of recent
falls, he increased plaintiff’s dosage of OxyContin to the
precise amount requested by plaintiff.
On May 4, 2007, Dr. Schmidt “offered” to reduce plaintiff’s
dose of narcotic pain medication.
Plaintiff declined; therefore,
his dose was kept the same.
On August 20, 2007, plaintiff requested an injection of
Toradol for headache relief, so Dr. Schmidt gave him one.
47
That
same day plaintiff said, for the first time, that he was
“depressed at times”, so Dr. Schmidt gave him a prescription for
an antidepressant.
On January 4, 2008, plaintiff requested an increase by 20 mg
twice a day of his OxyContin because he said he was having “more
pain recently.”
Dr. Schmidt did not perform any kind of exam -
he simply wrote a new prescription increasing plaintiff’s
OxyContin by 20 mg twice a day, despite the fact that plaintiff
had just been in for a refill of his Oxy-IR eight days earlier
and did not mention anything about his pain.
On January 11, 2008, despite plaintiff’s history of coming
up with excuses as to why he lost his narcotic medication and
needed more, Dr. Schmidt gave plaintiff another new prescription
for his narcotics after he said he got upset and flushed his
OxyContin down the toilet.
On January 21, 2008 -- 20 days after having gotten new
narcotic prescriptions, plaintiff saw Dr. Schmidt and admitted he
had been out of his medication for the past three days.
Defendant’s grandmother complained that defendant was on too much
pain medication.
Dr. Schmidt observed that plaintiff had slow
reactions and speech slurring; however, he refilled plaintiff’s
narcotic medications.
48
On February 28, 2008, plaintiff told Dr. Schmidt that he
took himself off the Celexa (and this was just after plaintiff
learned his disability application had been denied) and
therefore, Dr. Schmidt told him to remain off that medication.
On May 6, 2008, plaintiff asked to increase his OxyContin
due to “more neck pain and stiffness.”
Dr. Schmidt did not
perform an exam, he simply increased plaintiff’s OxyContin to the
dosage plaintiff had requested.
On July 17, 2008 -- nine days after Dr. Schmidt had written
plaintiff a new prescription for Oxy-IR, plaintiff told Dr.
Schmidt that he wanted to try morphine instead of the OxyContin.
Therefore, although plaintiff had never had any problem with
OxyContin, Dr. Schmidt wrote plaintiff a prescription for
morphine.
No exam was done on this visit.
Two weeks later, plaintiff was seen by another doctor in Dr.
Schmidt’s office.
Plaintiff complained of a bad reaction to
morphine and asked for another refill of OxyContin.
That doctor
recommended that plaintiff have IV fluids and medication so that
he would not get dehydrated since he claimed to be vomiting and
suffering from diarrhea.
Plaintiff said no.
doctor to give plaintiff a shot.
His mother told the
The shot was given.
On August 7, 2008, plaintiff told Dr. Schmidt that he had
gone to the hospital for a small bowel obstruction most likely
49
due to morphine pills.
Dr. Schmidt assessed “small bowel
obstruction” and “morphine intolerance” based solely on
plaintiff’s word, even though plaintiff had told Dr. Schmidt
previously that he had had morphine before and had tolerated it
well.
On September 23, 2008, plaintiff saw Dr. Schmidt and said
his pain was “not relieved too well” despite having gotten new
prescriptions the previous week from the hospital for Oxy-IR and
OxyContin.
This was after plaintiff told the ER that he was not
taking any medications, although his narcotic medication had just
been refilled the month before.
Dr. Schmidt refilled plaintiff’s
OxyContin and changed his Oxy-IR to Roxicodone.
Two weeks later, plaintiff claimed the Roxicodone was not
working any better than the Oxy-IR, so he asked to go back to
Oxy-IR.
Again, Dr. Schmidt obliged and wrote plaintiff a new
prescription for Oxy-IR.
On November 14, 2008, plaintiff said he had been served
papers in a court case related to the charges that he altered his
OxyContin prescription.
Although Dr. Schmidt recalled that
plaintiff previously admitted he had done that, Dr. Schmidt
continued to write narcotic prescriptions at plaintiff’s request.
On February 6, 2009, plaintiff requested additional pain
medication due to his working harder cutting wood.
50
This was
about three months after Dr. Schmidt’s last letter in support of
plaintiff’s disability benefits in which Dr. Schmidt said
plaintiff could not work at all.
Plaintiff also said he had
fallen on a porch and hit his shoulders.
injury to plaintiff’s shoulders.
Dr. Schmidt observed no
However, on plaintiff’s
request, Dr. Schmidt increased plaintiff’s OxyContin and refilled
his Oxy-IR.
Two weeks later, plaintiff changed his story about the slip
and fall and said he actually landed flat on his back, and
therefore, he needed an early refill of his narcotics obviously
because he had been taking more than had been prescribed.
Dr.
Schmidt did as requested.
On April 28, 2009, Dr. Schmidt wrote a letter in support of
plaintiff’s disability application and indicated that plaintiff
had daily pain and stiffness in his left knee.
However, the last
time plaintiff had even complained of knee pain was July 17, 2008
-- about nine months earlier.
In addition, five weeks hence
plaintiff would describe his knee problem to another doctor as
being “stable.”
On May 21, 2009, plaintiff complained of back pain after
physical activity, yard work, and longer trips to visit his
grandfather.
Plaintiff said he needed an early refill of his
narcotics, again because he had been taking more than prescribed.
51
Dr. Schmidt performed no exam -- he wrote the early prescription
as plaintiff had requested.
In addition, he wrote plaintiff
another prescription to fill in 30 days relieving plaintiff of
the need to have a doctor visit before getting more narcotics.
On June 12, 2009, plaintiff admitted to Dr. Schmidt during
an appointment for pain medication refill that he took excessive
pain medication beyond the amount prescribed.
The only time Dr. Schmidt limited plaintiff’s narcotic
medication against plaintiff’s wishes was when plaintiff’s
grandmother said she was paying for the medicine and could only
afford enough to get plaintiff through the end of the month, so
that is how Dr. Schmidt wrote the prescription.
The record is very clear in this case -- Dr. Schmidt’s
treatment and opinions regarding plaintiff’s ability to work were
dictated by his patient and were not supported by exams, tests,
or observations and were often contradictory to exams and
observations.
The disability form completed by Dr. Schmidt
repeatedly asks for signs, symptoms or medical findings
supporting his opinions; and Dr. Schmidt repeatedly wrote nothing
more than plaintiff’s complaints.
He left blank all objective
support for his conclusions and admitted on the form that they
were supported by nothing more than subjective complaints of
pain.
He relied on plaintiff’s unsubstantiated complaints of
52
multiple closed head injuries resulting in memory disturbance
despite the fact that he had never (and would never) observe any
evidence of memory disturbance.
The ALJ did not err in giving no weight to the opinion of
this treating physician.
VIII. COMBINATION OF IMPAIRMENTS
Finally plaintiff argues that the ALJ erred in not
considering the combined effect of plaintiff’s impairments.
“The
Administrative Law Judge did not fully take into account the
combined effects of the Plaintiff’s depression, anxiety, memory
problems, headaches, effects of breaking his neck in 2006, which
required surgery and has had four knee surgeries.”
Plaintiff’s
argument is without merit.
There is no evidence that plaintiff suffered anything other
than minor limitations due to any mental impairment.
On August
10, 2007, he had normal mood and affect, was alert and oriented.
He did not raise any allegation of memory disturbances until a
week before he applied for disability benefits, and then he
blamed his heretofore unheard of memory problems on several
accidents during which he hit his head fairly hard.
medical evidence supporting these allegations.
There is no
A month later,
plaintiff was alert, pleasant and non-ill appearing.
On November
6, 2007, Dr. Burstin found that plaintiff’s mental impairment was
53
non-severe.
By November 27, 2007, plaintiff had stopped taking
Celexa on his own, described his depression as stable, and did
not get a refill of his antidepressant.
The next mention of mental issues occurred on January 11,
2008, after plaintiff’s girl friend left him.
It was suggested
that he receive treatment at a stress center, but he declined.
The following month, the stress center was again recommended, but
he declined.
On May 6, 2008, plaintiff said his mood was stable and he
was not taking Celexa.
He described his “nerves” as stable.
Plaintiff reported on July 17, 2008, moodiness and temper
outbursts, but he had not been taking his antidepressant.
On
September 13, 2008, he was described as alert, oriented, friendly
and cooperative.
At the hearing, plaintiff’s grandmother testified that he
did not seem to be suffering from depression when he shot
himself.
It was only on prompting from plaintiff’s counsel that
Ms. Duncan changed her testimony.
Even Dr. Schmidt noted that
plaintiff was “not affected too much” by any mental impairment.
There is no evidence (other than plaintiff’s non-credible
allegations) that he ever suffered from memory problems.
No
memory tests were ever performed and there is no evidence of
difficulty remembering things.
54
Plaintiff’s knee surgeries occurred before his alleged onset
date and he was subsequently able to work full-time jobs driving
large trucks with a clutch.
He was able to carry a hot tub, use
a weed-eater, take care of his home, play golf, and live alone -indicators that his knee problem did not get that much worse.
Plaintiff’s neck surgeon released him to return to work
without restrictions three months after his neck surgery.
The ALJ adequately considered the effects of all of
plaintiff’s credible impairments.
IX.
CONCLUSION
Based on all of the above, I find that the substantial
evidence in the record as a whole supports the ALJ’s finding that
plaintiff is not disabled.
Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is
denied.
It is further
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
September 2, 2011
55
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