Wolf v. Astrue
ORDER and OPINION affirming Commissioner's final decision denying benefits. Signed on 04/30/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
THOMAS E. WOLF,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Case No. 11-3139-CV-S-ODS
ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff's appeal of the Commissioner of Social Security’s final
decision denying his application for disability and supplemental security income
benefits. The Commissioner's decision is affirmed.
While Plaintiff’s alleged onset date is August 25, 2008, a brief discussion of his
prior medical history is warranted. He underwent two prior back surgeries, one in 2000
and one in 2002, to address bulging discs. In November 2006, while incarcerated,
Plaintiff complained of back pain that he rated as 5 on a 1-10 scale while at rest and 8
or 9 when he was active. R. at 179. At times he was observed to walk without difficulty
or apparent pain, but at other times he was observed to have poor posture and a limited
range of motion. X-Rays in December 2006 revealed narrowing at L4-5 and L5-S1 and
some scoliosis. R. at 184. He was apparently treated with medication, primarily
Naproxin and Tylenol.
In April 2008 – by now no longer incarcerated – Plaintiff went to Dr. Jennifer
Bridges for treatment. At the first appointment, Plaintiff exhibited a normal gait adn no
misalignments or any other problems. Dr. Bridges prescribed Flexeril and Ultram. R. at
07-08. At his next appointment, Dr. Bridges noted tenderness in Plaintiff’s lumbosacral
region and added prescriptions for Vicodin and Ibuprofin. R. at 210. The tenderness in
Plaintiff’s back was noted again in June, at which time his prescriptions were refilled and
Plaintiff was told to apply hot and cold packs. R. at 211. Plaintiff underwent an x-ray in
August. The x-rays revealed narrowing at L3-4, L4-5, and L5-S1, which was attributed
to degenerative disc disease. Plaintiff’s medication was altered, and in late August
Plaintiff underwent an MRI. The MRI confirmed the narrowing noted on the x-rays and
also revealed that a protrusion contacted – but was not “significantly deforming [the]
right L3 nerve root,” no impingement of the L4 nerve root, and no stenosis. R. at 22728. In September, Dr. Bridges refilled Plaintiff’s prescriptions. R. at 218.
At some point, Dr. Bridges referred Plaintiff to Dr. Jay Baker at the pain clinic at
Ozarks Community Hospital (“OCH”). Plaintiff first saw Dr. Baker in early October 2008,
at which time Plaintiff reported his pain was constant and rated at a 9, worse with
activity. Dr. Baker suggested cortisteroid injections, but Plaintiff reported that he had
tried them in the past and “did not feel that they were effective” and preferred “long-term
narcotic management.” Dr. Baker arranged for a psychological evaluation to assess
Plaintiff’s suitability for such treatment and prescribed Kadian and exercises in the
meantime. R. at 234-35. Approximately two weeks later, Plaintiff told Dr. Baker that his
pain was a 5 made “worse by standing and sitting” and that he was realizing “from 50%
to 70% relief with his oral medications.” Dr. Baker increased Plaintiff’s dosage of
Kadian. R. at 233. In November, Plaintiff saw a nurse practitioner at OCH and told her
that is pain was then at an 8, but that was achieving “90% relief with his current
medication regimen.” R. at 267. He made a similar statement to Dr. Baker in
December. R. at 266.
Plaintiff did not return for medical treatment again until May 26, 2009, at which
time he explained to Dr. Bridges that he “ha[d] been out of town for the past 5 mo and is
having a lot of pain.” Dr. Bridges referred Plaintiff back to OCH. R. at 250. Plaintiff
returned to Dr. Baker on June 15, reporting “he had to go out of town to take care of
some business and . . . just recently returned.” He told Dr. Baker that “when he took his
Kadian he had good relief [and] [h]is overall pain rating today is a 7.” Dr. Baker re2
prescribed Kadian. R. at 265. In July, Plaintiff again reported that Kadian provided
“90% relief” but that he experienced discomfort in the middle of the day; Dr. Baker
added a prescription for morphine “to see if that will tide him over.” R. at 264. Plaintiff
reported minimal relief from the morphine durinv visits to OCH in August and
September, and in September his prescription of Kadian was increased. R. at 262-63.
In October, Plaintiff told Dr. Baker he was experiencing numbness and tingling in his
toe; injections were recommended again, but Plaintiff rejected the suggestion even
though he was told “there is not a lot we are going to be able to do about numbness and
tingling with just oral medication.” R. at 261. In November, Plaintiff’s Kadian was
discontinued and the dosage of morphine was increased. R. at 260. The dosage was
altered again in December and maintained in January. R. at 257-59.
On February 16, 2010, Dr. Bridges completed a Medical Source Statement
(“MSS”) indicating Plaintiff could frequently lift five pounds and occasionally lift twenty
pounds, stand or walk a total of two hours a day and twenty to thirty minutes at a time,
sit for two hours a day and thirty to forty-five minutes at a time, and needed to avoid
climbing, balancing, stooping, crouching, crawling, vibrations, and extremes of heat or
cold. She also indicated Plaintiff would need rest periods every thirty to sixty minutes
lasting fifteen to twenty minutes. R. at 269-71.
Plaintiff was born in May 1962, earned his GED, and has prior work experience
as a stock clerk, poultry worker, inspector, and packager. During the hearing, he
testified that he has applied for jobs since August 2008, but has not gotten any job
offers and does not think he could work anyhow. R. at 26-27. He described side effects
from his medication, including sleepiness and slurred speech – but admitted that he had
never told his doctors about them. R. at 27. He described his pain as a sharp, stabbing
sensation in his waist area that would sometimes extend into his legs to his knee. The
pain is sometimes accompanied by cramps or spasms. R. at 27-28. Medication does
not completely alleviate his pain. R. at 28-29. Plaintiff testified that he could stand for
fifteen minutes at time, sit for fifteen minutes at a time, and walk approximately one
block, and needed to lie down and rest for two hours per day. He described his daily
activities as consisting of waking up, making coffee, and waking his daughter (who was
under three years old at the time) and taking care of her throughout the day. R. at 3233, 127-28. In documents filed as part of the administrative process, Plaintiff indicated
he also drove his wife “when needed.” R. at 127. He also indicated that he cooked
daily, did the laundry, washed dishes, and leaves the house “4 or 5 times a day.” R. at
The ALJ did not accord controlling weight to Dr. Bridges’ MSS. He explained that
while she had a
treating relationship with the claimant . . . her medical source statement
consists mainly of checked boxes with little explanations as to the
reasoning behind her assessment. Further, her assessment is not
supported by her treating notes or the medical evidence of record.
Although she saw the claimant numerous times, her examination notes do
not reflect the degree of incapacity she attributed to the claimant in her
medical source statement.
R. at 15. The ALJ also recognized that Plaintiff suffers from a severe medical condition
that can be expected to cause pain, and identified the critical issue as the amount of
pain Plaintiff suffers and the effect of that pain on Plaintiff’s residual functional capacity.
R. at 13. In this regard the ALJ did not find Plaintiff’s testimony to be credible for a
variety of reasons, including the lack of medical support for the severity of pain he
described, inconsistencies with his daily activities, the nature of medical treatment
prescribed, the five month gap in Plaintiff’s treatment, and Plaintiff’s work history. R. at
The ALJ determined Plaintiff retained the residual functional capacity to sit six to
eight hours a day, stand two hours a day, lift five pounds frequently and ten pounds
occasionally. He also found that Plaintiff required the option to sit or stand at will, and
that Plaintiff suffered from other limitations that need not be detailed here. Based on
these findings, the ALJ determined Plaintiff could not return to his past work. After
eliciting testimony from a vocational expert, the ALJ concluded Plaintiff could find work
as an assembler or a table worker.
“[R]eview of the Secretary’s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary’s conclusion. [The Court] will not reverse a decision simply because some
evidence may support the opposite conclusion.” Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.
Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means “more than a
mere scintilla” of evidence; rather, it is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
A. Failure to Defer to Dr. Bridges’ MSS
Plaintiff contends the ALJ erred in not deferring to Dr. Bridges’ assessment as
expressed in the MSS. Generally speaking, a treating physician’s opinion is entitled to
deference. However, the Record does not contain substantial evidence suggesting Dr.
Bridges was entitled to such deference. “The treating physician rule is premised, at
least in part, on the notion that the treating physician is usually more familiar with a
claimant’s medical condition than are other physicians.” Thomas v. Sullivan, 928 F.2d
255, 259 n.3 (8th Cir. 1991) (citation omitted). Dr. Bridges saw Plaintiff for back
problems approximately once a month between April and September 2008 before
referring him to a different doctor. She saw Plaintiff again in May 2009, and essentially
referred Plaintiff back to Dr. Baker. This does not appear to be the sort of relationship
that justifies deference. Plaintiff attempts to augment Dr. Bridges’ involvement by
pointing out that she was provided copies of Dr. Baker’s reports – but this only furthers
the conclusion that it was Dr. Baker, not Dr. Bridges, who was treating Plaintiff for backrelated issues.
Even if Dr. Bridges is properly considered a treating physician, the ALJ was
justified in not deferring to her MSS. Deference is not automatically required; a treating
physician’s opinion may be disregarded if it is unsupported by clinical or other data or is
contrary to the weight of the remaining evidence in the record. E.g., Pena v. Chater, 76
F.3d 906, 908 (8th Cir. 1996). Here, it is true that Plaintiff underwent to prior back
surgeries, and that x-rays and an MRI confirmed disc-space narrowing, but none of the
objective medical findings confirmed a condition that would be expected to cause the
degree of pain Plaintiff reported. Continuing the efforts to bootstrap Dr. Baker’s
treatments into Dr. Bridges’ MSS, Plaintiff points out that Dr. Baker eventually
prescribed narcotic pain medication. However, it is also true that (1) he first – on two
separate occasions – suggested cortisteroid injections precisely because oral
medication would not be effective, (2) no further surgery was recommended, and (3)
Plaintiff consistently reported achieving a high degree of relief from his medications.
Thus, Dr. Baker’s reports do not provide the necessary support to require deference to
Dr. Bridges’ MSS. The ALJ’s determination was supported by substantial evidence in
the Record as a whole.
B. ALJ’s Factual Findings
Plaintiff has parsed various of the ALJ’s statements, alleging each isolated
finding to be unsupported or insufficient its their own to justify the denial of benefits.
The Court prefers to address these issues collectively because they are interrelated and
doing so is more consistent with the obligation to evaluate the Record as a whole.
The first issue involves the ALJ’s determination that Plaintiff’s testimony was not
fully credible. As the ALJ noted – and is often the case – the critical issue is not
whether Plaintiff experiences pain, but rather the degree of pain that he experiences.
House v. Shalala, 34 F.3d 691, 694 (8th Cir.1994). The familiar standard for analyzing a
claimant’s subjective complaints of pain is set forth in Polaski v. Heckler, 739 F.2d 1320
(8th Cir. 1984) (subsequent history omitted):
While the claimant has the burden of proving that the
disability results from a medically determinable physical or
mental impairment, direct medical evidence of the cause and
effect relationship between the impairment and the degree of
claimant’s subjective complaints need not be produced. The
adjudicator may not disregard a claimant’s subjective
complaints solely because the objective medical evidence
does not fully support them.
The absence of an objective medical basis which supports
the degree of severity of subjective complaints alleged is just
one factor to be considered in evaluating the credibility of the
testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to
subjective complaints, including the claimant’s prior work
record, and observations by third parties and treating and
examining physicians relating to such matters as:
1. The claimant’s daily activities;
2. the duration, frequency and intensity of the pain
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s
subjective complaints solely on the basis of personal
observations. Subjective complaints may be discounted if
there are inconsistencies in the evidence as a whole.
739 F.2d at 1322. Again, looking collectively at the evidence in the Record and the
ALJ’s decision, there is substantial competent evidence to support the ALJ’s finding that
Plaintiff’s subjective complaints were not fully credible. Plaintiff went more than five
months without receiving treatment; this undercuts his claim of debilitating and constant
pain. Dr. Baker suggested cortisteroid injections because they could provide relief that
oral medications could not, but Plaintiff refused. The failure to follow a physician’s
advice is inconsistent with complaints of disabling pain. E.g., Choate v. Barnhart, 457
F.3d 865, 872 (8th Cir. 2006). Plaintiff had a poor earning record, suggesting a
diminished motivation to work. Plaintiff’s statements to doctors about the efficacy of
medication were inconsistent with his claims of debilitating pain, and his failure to tell
doctors about the side-effects of medication undercuts his credibility on that issue.
Plaintiff’s daily activities are also inconsistent with his testimony; the ALJ was entitled to
find that Plaintiff’s testimony about pain and the corresponding effects was inconsistent
with his testimony that, on a daily basis, he was solely responsible for caring for an
It may be that any one of these factors, alone, would be insufficient to justify the
ALJ’s findings. In concert, however, they serve as substantial evidence supporting the
ALJ’s decision, and there is no basis for second-guessing the ALJ’s factual
The second finding Plaintiff challenges is the determination of his residual
functional capacity (“RFC”). In large measure, his arguments replicate those with
respect to Dr. Bridges’ MSS, and for the reasons previously stated those arguments are
rejected. Plaintiff also contends the ALJ improperly relied on a non-examining,
consulting physician’s opinion (Dr. Van Kinsey) to ascertain the RFC. This was
improper, according to Plaintiff, because the RFC is a medical determination and Dr.
Kinsey cannot offer a medical opinion without having examined Plaintiff. Plaintiff’s
characterization is not complete: while “a claimant’s RFC is a medical question, . . . in
evaluating a claimant’s RFC, an ALJ is not limited to considering medical evidence
exclusively.” Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). It is simply not true that
the RFC can be proved only with medical evidence. Dykes v. Apfel, 223 F.3d 865, 866
(8th Cir. 2000) (per curiam). Evidence of Plaintiff’s actual daily activities and the medical
evidence that existed was sufficient to support the ALJ’s determination about Plaintiff’s
The Commissioner’s final decision is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: April 30, 2012
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