Cole, Jr

Filing 19

ORDER and OPINION Affirming Commissioner's Final Decision Denying Benefits. Signed on May 24, 2013 by District Judge Ortrie D. Smith. (Moore, Terri)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
KENNETH C. COLE, JR.,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 12-3057-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 Supplemental Security Income benefits. The
Commissioner's decision is affirmed.

I. BACKGROUND

Plaintiff was born in June 1961, earned his GED, and has no relevant prior work
experience. During the hearing he amended his onset date to allege he became
disabled on December 31, 2008, R. at 26-27, due to a combination of lumbar
spondylosis, breathing and sleeping issues, and obesity. Most of the Record relates to
Plaintiff’s breathing and sleeping issues. The ALJ found these issues were not severe
because they were controllable with treatment. R. at 10. Plaintiff does not raise any
issues with respect to this finding, so the Court will not recount the evidence related to
Plaintiff’s breathing and sleeping issues. Plaintiff’s arguments focus on his back issues,
and the Court will do the same.
In April 2006, Plaintiff was involved in a car accident that caused him pain in his
shoulder and lower back. R. at 221-23. An x-ray of shoulder was unremarkable, and
an x-ray of his back revealed degenerative changes and disc space narrowing, with
“[vertebral body height . . . well maintained and the vertebral bodies . . . in good

alignment.” R. at 234-35. In November 2006, Plaintiff went to a chiropractor to seek
treatment. As he explained, injections had not provided relief and he was advised to
seek chiropractic treatment. Testing revealed normal range of motion in his lumbar
region and nearly normal range of motion in his cervical region. A precise diagnosis is
not reflected in the treatment notes, but by the end of July 2007 Plaintiff reported
“feeling very well. Very happy with prog[ress].” Plaintiff’s final visit was on August 1;
the chiropractor’s note for that visit indicates Plaintiff was “asymptomatic.” R. at 197202.
Plaintiff received regular medical care at Citizens Memorial Hospital & Clinics
(“Citizens”). He went there on numerous occasions, seeking treatment for a wide range
of ailments (including the flu, colds, earaches, and various injuries). However, between
August 2006 (his first visit following his auto accident) and December 2008 Plaintiff did
not complain about pain in his back, neck or shoulder. R. at 239-328. In December
2008 Plaintiff reported significant problems breathing and sleeping, but as noted earlier
these issues have been found to be nonsevere because they are controlled. A series of
tests were performed, and on February 13, 2009 he saw Dr. Kristopher Kaufmann at
Citizens to establish care for chronic shortness of breath. R. at 467-72. He saw Dr.
Kaufmann on February 18, March 6, and March 12 for problems with his hand and arm
and continued treatment for breathing and sleeping problems. At no time did Plaintiff
make any complaints about his back. R. at 452-66.
In early April, Plaintiff complained of low back pain that caused numbness and
tingling after walking, standing or sitting for too long (although he was not experiencing
symptoms at the appointment). Examination revealed muscle tenderness and spasms.
Dr. Kaufmann diagnosed him as suffering from lumbago, prescribed naproxen, and told
Plaintiff to exercise. R. at 448-51. Plaintiff returned the following week for evaluation of
his breathing, but made no mention of any back problems. R. at 444-47.
Plaintiff’s next visit to Dr. Kaufmann was on June 30, 2009. He reported
“needing to take his pain medication daily and if he sits for too long he has to take 2 of
his pain medications.” He was taking four to five naproxen daily. In describing his
symptoms, Plaintiff denied experiencing “sharp shooting pain, numbness, or tingling.”
Dr. Kaufmann added prescriptions for hydrocodone and flexeril. R. at 439-43. Plaintiff
2

returned five months later complaining of insomnia; there was no discussion of back
pain. R. at 433-36. A visit in late December also failed to mention any back problems.
R. at 428-31. The same is true of visits in January 2010. R. at 419-27.
In April 2010, Plaintiff had an office visit to obtain “Medicaid paperwork.” He
reported low back pain, that his “legs will go numb at times,” and that he could not afford
to pay for an injection. R. at 415-18. Dr. Kaufman completed a medical report on a
form provided by the Missouri Department of Social Services indicating Plaintiff had low
back pain and numbness in both legs from his thigh to his calf. He also indicated
Plaintiff could not walk more than thirty yards, but attributed this to Plaintiff’s breathing
problems and not to his back. R. at 371-72.
On May 24, Plaintiff saw Dr. Mark Bult at Citizens’ pain management clinic on
referral from Dr. Kaufmann. Plaintiff told Dr. Bult he had experienced back pain “off and
on for the last 10 years after falling from a telephone pole.” Plaintiff rated his pain “at 9
and describes it as a throbbing or pressure that is associated with intermittent
numbness of the left leg [and] sitting, walking, stair climbing, coughing, and changing
position will aggravate the pain. Massage will help to relieve it.” He described his
medication as “somewhat helpful.” Dr. Bult also reported x-rays performed in May 2009
revealed mild degenerative disc disease and spondylosis at L3-L4 and L4-L5.
Examination revealed tenderness in the lower lumbar region, but hyperextension and
hyperflexion did not aggravate the pain and Plaintiff was able to walk normally. Dr. Bult
administered an epidural steroid injection. R. at 410-14. On June 8, Plaintiff reported
experiencing initial relief following the injection, but the pain “returned to a level of 7.”
Dr. Bult delayed consideration of further treatment while Plaintiff recovered from the flu.
R. at 405-08. Plaintiff never returned to Dr. Bult as directed.
On July 16, Dr. Kaufmann completed a Medical Source Statement – Physical
(“MSS”) describing Plaintiff as suffering from mild to moderate degenerative disc
disease. In terms of functional abilities, he indicated Plaintiff could occasionally lift five
pounds, could not walk or stand at all, could sit for two hours per day and ten to fifteen
minutes at a time with frequent repositioning, could never climb, balance, stoop, or
crouch and could only occasionally kneel or crawl. Dr. Kaufmann also wrote that
epidural injections had failed and there was a “workup in progress.” R. at 401-03.
3

In September 2010, Plaintiff was seen by Dr. Chris Weber for a consultative
examination. Plaintiff told Dr. Webber that he could sit for only ten to fifteen minutes
frequently and up to thirty minutes occasionally before needing to change positions. He
reported his main activity was watching television, except he went shopping once a
month (at which time he rode in the store’s cart), cooked occasionally, and mowed the
lawn on a riding mower. Examination revealed no tenderness but a below-normal range
of motion in the lumbar region. X-rays revealed “mild” degenerative disc disease and
spondylosis at L3-L4 and L4-L5. Dr. Weber opined that Plaintiff could lift and carry ten
pounds occasionally and might “have difficulty doing a job that didn’t allow him to sit or
stand or change positions as he needed for comfort.” This conclusion was “based
mainly on subjective reports, and supported somewhat by range-of-motion although not
completely.” Dr. Webber also completed a MSS, indicating Plaintiff could lift and carry
up to ten pounds occasionally, sit for six hours per day and sixty minutes at a time,
stand and walk for up to one hour per day each and thirty minutes at a time each, and
could frequently reach, handle, finger, or push and pull. R. at 489-500.
During the hearing, Plaintiff testified he could lift five to ten pounds regularly,
stand for no more than five minutes before needing to sit, walk no more than fifty yards,
and sit for no more than thirty minutes before needing to move. R. at 27-28. He
testified that he did not work around the house, and that all chores were performed by a
friend or his stepson. He spends most of his time watching television or visiting with
friends who come to his home. R. at 29-31. Pain and discomfort causes him to nap or
lie down at least three times a day for forty-five to ninety minutes. R. at 32. With
respect to the effects of treatment, Plaintiff only stated that he “got shots in my back and
they didn’t seem to help.” R. at 32.
The ALJ posed hypothetical questions to a vocational expert (“VE”). The first
assumed a person of Plaintiff’s age, education and experience who could perform a full
range of light work but could stand or walk for thirty minutes at a time and needed the
option to change between those positions, sit for thirty minutes at a time, could
frequently bend and stoop and only occasionally could squat. The VE testified such a
person could work as a storage facility rental clerk or counter clerk. The second
hypothetical assumed Plaintiff could lift or carry five pounds could not stand or walk for
4

any significant period of time, could sit no more than two hours per day and fifteen
minutes at a time, could only occasionally kneel and crawl, could not climb, balance,
stoop, or crouch, and required frequent rest breaks. The VE testified such a person
could not perform work in the national economy. R. at 34-35.
The ALJ found Plaintiff’s residual functional capacity (“RFC”) was consistent with
the first hypothetical. He reached this conclusion after finding (1) some of Plaintiff’s
activities – such as shopping, cooking, riding a lawnmower – were inconsistent with the
degree of limitation he described at the hearing, (2) Plaintiff’s lack of earning history,
which the ALJ found indicative of a desire to not work, (3) a lack of evidence indicating
why Plaintiff’s extreme back problems would start suddenly, (4) a lack of medical
evidence supporting such extreme limitations. The ALJ discounted Dr. Kaufmann’s
overall assessment because (1) it was based more on COPD and related problems than
it was based on Plaintiff’s back issues and (2) Dr. Kaufmann’s opinion was unsupported
by or inconsistent with diagnostic data and other evidence in the Record. Based on the
ALJ’s findings regarding Plaintiff’s RFC and the VE’s testimony, the ALJ found Plaintiff
could perform work in the national economy and is not disabled.

II. DISCUSSION

“[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 Amore 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
Cir. 2010).
5

A. Failure to Defer to Dr. Kaufmann

Plaintiff first contends the ALJ erred in failing to defer to Dr. Kaufmann’s April 5,
2010 assessment as reflected on the report to the Missouri Department of Social
Services. Generally speaking, a treating physician=s opinion is entitled to deference.
This general rule is not ironclad; 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., E.g., Anderson v. Astrue, 696 F.3d 790, 793-094 (8th Cir.
2012); Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010); Pena v. Chater, 76
F.3d 906, 908 (8th Cir. 1996).
The Court is not convinced Dr. Kaufmann was a treating physician for purposes
of Plaintiff’s back pain. “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). The length of the relationship is also a factor to be considered
in determining whether a doctor can fairly be described as “treating” and, if so, how
much weight should be accorded. E.g., Martise v. Astrue, 641 F.3d 909, 925 (8th Cir.
2011); Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010). Dr. Kaufmann saw Plaintiff
five times before April 2010, and Plaintiff never made complaints about (and Dr.
Kaufmann never evaluated) his back. Dr. Kaufmann’s April 5, 2010 report was
rendered on the very first occasion where Plaintiff complained about back pain, which
undercuts the longitudinal relationship normally expected of a treating doctor.
Moreover, Dr. Kaufmann referred Plaintiff to Dr. Bult for treatment, suggesting Dr.
Kaufmann was not treating Plaintiff’s back condition.
Dr. Kaufmann’s MSS from July 2010 does not provide any further basis for
concluding he was Plaintiff’s treating physician. Dr. Kaufmann did not treat Plaintiff’s
back condition between April and July, so Dr. Kaufmann still lacked the treating
relationship necessary to be considered a treating physician. While Plaintiff had seen
Dr. Bult by that time there is no indication Dr. Kaufmann’s opinion was based on Dr.
Bult’s assessment. To the contrary, Dr. Bult did not have the opportunity to provide a
6

complete assessment because Plaintiff did not return to him as instructed. Dr.
Kaufmann’s qualifications for “treating physician status” were no different in July than
they were in April.
Even if Dr. Kaufmann can be fairly characterized as a treating physician, the
degree of deference due may be affected by the short period of time he was actually
treating Plaintiff’s back condition. In addition, the ALJ was entitled to consider the
absence of diagnostic testing and the fact that Dr. Kaufmann’s conclusions were largely
based on Plaintiff’s own complaints. While x-rays revealed mild degenerative disc
disease, they did not reveal a condition that would be expected to result in the extreme
limitations Plaintiff has alleged. In short, even if Dr. Kaufmann qualified as a treating
physician, the ALJ was justified in discounting his opinion.

B. The ALJ’s Credibility Determination

While this is Plaintiff’s third argument, the Court addresses it second because
Plaintiff’s remaining argument (relating to the RFC determination) partially depends on
this issue. Plaintiff contends the ALJ did not properly evaluate his credibility. 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
7

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
medication;
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. Here, there was a lack of diagnostic data indicating Plaintiff suffered
from a condition that could be expected to result in the limitations he described. Plaintiff
reported receiving significant benefit from chiropractic treatment, yet never sought it
again. Dr. Bult recommended that Plaintiff return for further evaluation after the first
round of epidural injections, but he did not do so. 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). The paucity of complaints also undercuts Plaintiff’s claim,
and the Record does not support his

Plaintiff argues the ALJ overstated his daily activities in finding they indicated
Plaintiff could perform gainful work, but this is not what the ALJ said. The ALJ did not
find that (as Plaintiff insinuates) that Plaintiff engaged in substantial gainful activity. He
did not go that far. The ALJ merely found Plaintiff’s daily activities were inconsistent
with the extreme degree of limitation Plaintiff testified to at the hearing. This
inconsistency supports the ALJ’s finding that Plaintiff’s testimony overstated Plaintiff’s
actual limitations.
Plaintiff also faults the ALJ for using Plaintiff’s lack of work and earnings as a
factor weighing against his credibility. He first contends that this lack of work and
earnings is justified by Plaintiff’s long history of disability and inability to work – but the

8

Record does not establish such a history. To the contrary, to the extent the Record
reveals anything before the onset date, it reveals Plaintiff’s back problem was
successfully treated in 2007 after being injured in the 2006 car accident, and his
breathing problems initially arose in late 2008.
Plaintiff also contends that a poor work record cannot be considered when
evaluating a claimant’s credibility, but this is not a correct statement of law. The Eighth
Circuit has specifically held that “[a] lack of work history may indicate a lack of
motivation to work rather than a lack of ability.” Pearsall v. Massanari, 274 F.3d 1211,
1218 (8th Cir. 2001); Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004). The
extent to which a poor work history is meaningful evidence of a claimant’s lack of desire
or willingness to work is a matter for the ALJ to evaluate and decide, along with all the
other Polaski factors. E.g., Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006);
Eichelberger, 390 F.3d at 590.

C. Determination of Plaintiff’s RFC

Plaintiff’s final argument attacks the RFC. He essentially argues that an RFC
can be based only on medical opinion, and by discounting Dr. Kaufmann’s opinion the
ALJ was left with no medical opinions from which an RFC could be derived.
While Aa 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 in the Record was
sufficient to support the ALJ=s determination about Plaintiff=s capabilities. The Court
also notes the RFC was substantially similar to the consulting opinion offered by Dr.
Weber.

9

III. CONCLUSION

In the Court’s assessment, Plaintiff’s initial and primary claim was that he was
disabled because of his COPD and related breathing and sleeping difficulties. As this
condition improved, the importance of back pain to his claim increased. The ALJ
ultimately concluded Plaintiff’s COPD and related problems were not severe because
they were controlled with treatment, and for whatever reason Plaintiff elected not to
challenge this conclusion. The present Record does not contain substantial evidence
suggesting he is unable to work. 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: May 24, 2013

10