v. Johnson et al

Filing 18

ORDER entered by Judge Ortrie Smith. The Commissioner's decision is affirmed. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
WILLIAM L. JOHNSON,

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

Case No. 12-3267-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.

I. BACKGROUND

Plaintiff was born in July 1974. He has prior work experience as a driver, laborer,
medical transporter, and inspector. He completed the eleventh grade, earned his GED,
and – as will be discussed further below – has actively pursued an Associate’s Degree
and plans to pursue a Bachelor’s Degree. Plaintiff filed his application for disability
benefits under Title II in February 2007, alleging an onset date of February 28, 2006.
His insured status expired December 31, 2009, so Plaintiff must have been disabled on
or before that date to qualify for benefits.

A. Medical History

Plaintiff was involved in a job-related accident on February 28, 2006, and he has
not worked since that date. The accident injured Plaintiff’s back, and he was initially

treated initially by Dr. Glenn Cooper. Dr. Cooper initially diagnosed Plaintiff as suffering
from low back pain secondary to a lumbar strain and grade I spondylolisthesis at L5-S1.
R. at 556. On March 28, Dr. Cooper opined that “[T]he best course of action would be
for this patient to be referred to a spine specialist in orthopedics and consider
undergoing a spinal fusion at L5-S1. . . . [R]egardless of the patient’s level of recovery
would return the patient to work with permanent restrictions that would be rather severe.
With this type of anomaly at the lumbosacral region he would be placed on a lifting
restriction as well as a forward bending and push/pull restriction.” R. at 560. On April
11, Dr. Cooper concluded that conservative treatment had been unsuccessful and
referred Plaintiff to an orthopedic surgeon. R. at 556.
Plaintiff began seeing doctors at Springfield Neurological & Spine Institute. He
was administered a series of epidural injections, but they did not provide relief. In
August 2006, the worker compensation insurer arranged for Plaintiff to see Dr. Michael
Chabot, who opined that Plaintiff’s work injury exacerbated a preexisting back condition,
efforts to resolve Plaintiff’s pain had been both reasonable and ineffective, and that
surgery was required. Dr. Chabot also indicated Plaintiff eventually “could return to
limited work duties with no lifting more than 55-60 pounds with limited squatting and
bending” but predicted Plaintiff would not reach maximum improvement “for several
months after surgical intervention.” R. at 614-17. Dr. Chabot performed the surgery in
early October 2006. Dr. Chabot directed that he remain off work until December 13, at
which time he advised Plaintiff could “return to light duty with no lifting more than 15
pounds for half-day.” While it is not clear as it could be, this statement appears to
approve Plaintiff’s return to work part-time. During this same visit, Dr. Chabot advised
Plaintiff to continue physical therapy and home exercises, which were to be “advanced
to a work-conditioning program.” R. at 611.
On January 10, 2007, Dr. Chabot reported Plaintiff was “doing much better” and
was able to move without difficulty and that the fusion appeared to be “complete.” He
also noted Plaintiff’s physical therapy reports demonstrated Plaintiff “made excellent
progress with respect to improving strength and endurance.” The report is devoid of
any serious complaints from Plaintiff, including complaints of pain. Dr. Chabot
“recommend[ed] that the patient return to limited work duties with no lifting more than
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40-45 pounds [and] continue with work conditioning to maximize strength and
endurance. R. at 610. A similarly positive report was made on January 24, at which
time Dr. Chabot indicated Plaintiff could “return to limited work duties . . . with no lifting
more than 60 pounds.” He reserved a final opinion on Plaintiff’s work restrictions
pending the results of a Functional Capacity Evaluation. R. at 609. Based on that
evaluation, on January 30 Dr. Chabot opined Plaintiff could lift in the 50-60 pound
range. R. at 608. On February 12, Dr. Chabot assessed Plaintiff as suffering from
permanent partial disability to 12% of the body as a whole. R. at 607. Nine days later
Plaintiff filed this application for disability benefits.
Plaintiff began seeing Dr. James Thompson on May 14, 2007. Plaintiff reported
experiencing back pain that radiated through his thighs and claimed the pain started
seven to eight months prior (even though this would have been during the recuperative
period from the surgery and Plaintiff never made any similar complaints to Dr. Chabot).
Dr. Thompson’s examination revealed decreased range of motion in the right hip and no
limitation in the left hip, full range of motion in the neck, and no other objective findings.
Plaintiff also reported feeling stressed and having difficulty concentrating. Dr.
Thompson prescribed Lyrica (for the pain), amitriptyline (an antidepressant/anti-anxiety
medication), and samples of Effexor (used to treat depression, anxiety, and panic
disorders). R. at 851-53.
On May 30, Plaintiff saw Dr. Truett Swaim on a consulting basis, apparently in
connection with his worker compensation claim. He told Dr. Swaim that he experienced
“constant low back pain” that was “worsened by lifting, bending, twisting, prolonged
standing, prolonged sitting, etc.” Dr. Swaim opined that Plaintiff “will have ongoing back
pain, lumbar radiculopathy, left sacroiliac joint dysfunction, lumbar muscle spasm with
decreased [range] of motion, and left leg weakness” and had 50% permanent partial
disability to the body as a whole. He further indicated Plaintiff could work but was
limited to lifting or exerting force in the amount of ten pounds constantly, ten to twenty
pounds frequently, and twenty to fifty pounds occasionally, and needed to avoid
prolonged sitting, standing or walking. R. at 840-47.
Plaintiff returned to Dr. James Thompson on June 25 and reported the Lyrica and
Effexor (he had “not started the amitriptyline yet”) did not help with his pain, stress or
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anxiety and described experiencing episodes that Dr. Thompson described as “true
panic attacks.” The medical exam produced similar results to those found in May, and
Dr. Thompson also wrote “No spasm” – yet, in his diagnosis, he added back spasm to
the previous diagnoses of back pain and stress. He prescribed Plaintiff Effexor for
stress and Lorazepam for back spasms. R at 854-56. He also provided a medical
statement to support Plaintiff’s application for a disabled license placard, indicating
Plaintiff could not walk more than fifty feet without needing to stop to rest “due to a
severe and disabling arthritic, neurological, orthopedic condition, or other severe and
disabling condition.” R. at 924. To that date, Dr. Thompson’s records had not reflected
Plaintiff made such complaints. Plaintiff’s next appointment was on August 9, and Dr.
Thompson issued a report that was very similar to the ones he issued in the past in
terms of Plaintiff’s physical condition. The report states Plaintiff has “anxiety, feels of
stress, difficulty concentrating and sleep disturbance” but was not depressed. However,
Dr. Thompson’s diagnosis was limited to “[l]ow back pain” and he prescribed
Gabapentin and Ultram for pain and Cyclobenzaprine for muscle spasms. R. at 857-59.
On January 10, 2008, Plaintiff went to the Urgent Care Clinic complaining of back
pain that had persisted for the preceding two days. Nothing neurologically or
psychologically remarkable was noted. R. at 722-24. The next day Plaintiff saw Dr.
James Thompson for the first time since August 2007. He continued to complain of
constant low back pain radiating to his arms and thighs. He also complained of nausea
and vomiting over the preceding two weeks. Dr. Thompson indicated Plaintiff was
“[n]egative for depression, feelings of stress, personality change, difficulty
concentrating, sleep disturbance and suicidal thoughts.” In addition to assessing
Plaintiff as suffering from low back pain and nausea, Dr. Thompson indicated – with a
single word – that Plaintiff suffered from tremors. This diagnosis was made even
though nothing else in the notes from this visit mentions any complaints or observations
to support the diagnosis. R. at 919-21. Two weeks later, Dr. Thompson listed Plaintiff’s
“Current Problems” as including low back pain, stress, and tremor – even though
Plaintiff made no reports about tremors and no tremors are documented anywhere else
in the report. R. at 916-17.

4

In April, Dr. James Thompson noted Plaintiff complained of “mild back pain” that
was “most prominent in the mid lumbar spine . . . radiat[ing] to the neck, shoulders and
upper arms.” The pain was constant and commenced one month prior. Dr. Thompson
also wrote that while Plaintiff presented “suggestive symptoms” he did “not currently
carry an official diagnosis of anxiety disorder.” Dr. Thompson told Plaintiff to take
Ibuprofen for his back and continue taking Lexapro for anxiety. R. at 910-12. In June
Plaintiff went to the Urgent Care Clinic complaining of back pain that had been getting
worse since the preceding Saturday; his range of motion was noted to be “ok.” R. at 7221.
Plaintiff had an MRI of his back in August 2008. The MRI showed a disc
protrusion at C5-6 that was impinging on the spinal cord. Less-significant protrusions
appeared at C6-7, T2-3, and T3-4. The latter three protrusions intruded upon the space
near the spinal cord. R. at 731-32. He returned to Dr. Thompson after the MRI; Dr.
Thompson’s notes do not reflect that he was aware of the MRI, and his report is similar
to those he issued in the past. R. at 901-03. Similar reports (that similarly fail to
address the MRI) were issued following visits in October and December of 2008 and
January 2009. R. at 893-900.
Plaintiff underwent a consultative psychological exam (performed by Dr. Stacy
Bray) in November 2008. There is no indication that any diagnostic tests were
administered. Based solely on Plaintiff’s reports, the consultant concluded Plaintiff
“presents with anxiety in social situations which affects his behavior and potentially his
schoolwork. . . . This assessment alone is not adequate to provide a clear diagnosis;
therefore, it is given provisional status.” She assessed his current GAF score at 60-65,
and his score in the past year at 60-70. R. at 954-57.
In April 2009, Dr. James Thompson completed a Medical Questionnaire. The
form consists of two pages. In it, Dr. Thompson indicates Plaintiff can lift less than ten
pounds occasionally, stand or walk for forty-five to sixty minutes at a time and four
hours per day, sit for sixty minutes at a time and for four hours per day, is moderately
limited in the use of his upper extremities, and would miss one to two days of work per
month. R. at 932-33.

5

In May 2009, Plaintiff went to a different psychologist (Dr. Eva Wilson) for a
psychological consultation. Diagnostic testing revealed Plaintiff scored in the above
average range for intellectual and memory functioning, but he had “difficulty writing and
with his designs, although [he] copied correctly, he was obviously tremorring when he
wrote the designs.” Plaintiff’s results on the Minnesota Multiphasic Personality
Inventory were invalid because he was “either exaggerating his mental problems, or
crying for help.” She opined Plaintiff suffered from bipolar disorder, post traumatic
stress disorder, and that his prognosis was “good” but he required psychotherapy. R. at
935-38. Approximately two weeks later, Dr. Wilson completed a Medical Questionnaire.
She checked boxes indicating Plaintiff was moderately limited in his ability to
understand, remember and carry out detailed instructions, carry out simple instructions,
maintain attention and concentration for more than two hours, maintain regular
attendance and perform within a schedule, complete a normal workday or work week
without interruption from psychological symptoms, or ask simple questions or seek
assistance. She also opined that Plaintiff would miss more than four days per month
due to psychological conditions. When asked to provide clarifying comments, Dr.
Wilson indicated the reader should refer to her prior report. R. at 940-43.
In June 2009, Dr. James Thompson wrote Plaintiff a note designed to help him
obtain child care assistance from the State. The note simply states:
Mr. Johnson has been incapacitated due to a back injury since 10/2006
until the present time. He does need child care due to the incapacity. I do
not expect the back problem to resolve.
R. at 989. In July, Dr. Thompson referred Plaintiff to Dr. David Fontaine for evaluation
of Plaintiff’s depression. The appointment lasted thirty minutes, during which Plaintiff
reported that he was going to school “to learn a profession where he does not have to
provide muscle strength” and described his anxiety as “mak[ing] things difficult in social
interactions,” causing him to show up early to avoid being late, and making him
reluctant to speak up in class. Dr. Fontaine concluded Plaintiff suffered from major
depression, severe, with anxious features. He prescribed diazepam and Cymbalta and
instructed Plaintiff to return five months. R. at 959-60.

6

Plaintiff began seeing Dr. Robert Shaw in November 2009. He denied that pain
was the reason for his visit, but that he was applying for disability. Plaintiff reported
chronic back pain, “tremor in hands for most of life” and bipolar disorder. Dr. Shaw
assessed Plaintiff as suffering from familial tremor (even though he did not document
any symptoms), chronic ulcer, chronic pain, hypertension, diabetes, and bipolar
disorder. He prescribed metoprolol and refilled Plaintiff’s prior prescriptions for tramadol
(for pain). Plaintiff suggests metoprolol was prescribed for the tremors, Plaintiff’s
Suggestions in Support at 5, and Plaintiff certainly self-reported this fact, R. at 534, but
Dr. Shaw did not say this is the purpose for the metoprolol. In addition, metoprolol is
used to treat hypertension – another condition of Plaintiff’s requiring treatment.1 In
February 2010, Dr. Shaw saw Plaintiff in connection with diabetes-related tests. In
March, Plaintiff complained to Dr. Shaw that the tramadol was not helping with the back
pain. The pain was radiating into Plaintiff’s leg to his knee and kept him from standing
for long periods of time. Tremors were not mentioned by either Plaintiff or Dr. Shaw,
and Dr. Shaw described Plaintiff’s back pain as “unchanged.” R. at 1028-29. In April,
Plaintiff told Dr. Shaw he had recently gone to the emergency room with severe pain in
his neck and shoulder. Dr. Shaw noted Plaintiff had a limited range of motion in his
neck and there was evidence of muscle spasms in the back. He prescribed Vicodin. R.
at 1026-27. In May Plaintiff told Dr. Shaw he had begun seeing Dr. Richard Thompson
(no apparent relation to Dr. James Thompson) for management of his pain. R. at 1025.
Earlier in May, Dr. Richard Thompson administered a steroid injection in
Plaintiff’s neck. He also described Plaintiff’s back problem as a cervical disc disorder
without spinal cord injury. R. at 1042-44. In June, Plaintiff described his back pain as
aggravated by head movement and use of his arms and as alleviated with heat,
stretching and medication. Dr. Thompson discussed administering a cervical epidural
steroid injection to help address Plaintiff’s back pain. R. at 1038-40. In July, Dr.
Thompson apparently changed Plaintiff’s medication and arranged for updated MRI and
1

The Court takes judicial notice of this fact, which can be confirmed at multiple
sources, including web sites operated by the Mayo Clinic,
http://www.mayoclinic.com/health/drug-information/DR602483, and by the publisher of
the Physician’s Desk Reference. http://www.pdr.net/drug-summary/metoprolol-tartrateand-hydrochlorothiazide?druglabelid=1402
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x-ray. R. at 1035-37. The updated images were available to Dr. Thompson on August
4 because he references his review of them, but neither party points to their existence in
the Record and the Court cannot locate them independently. However, while Dr.
Thompson confirms he reviewed them, he does not indicate what the images revealed.
R. at 1031-34.

B. Administrative Proceedings

An administrative hearing was held on February 4, 2009. The ALJ issued an
unfavorable decision in April 2009, but the Appeals Council reversed the decision. A
second hearing was held on April 12, 2010, and the ALJ issued another unfavorable
decision in September 2010. The second decision stands as the Commissioner’s final
decision, so that is the decision the Court will review. However, the testimony from both
hearings should be considered.
At the first hearing, Plaintiff testified he had returned to school in the Fall of 2007
to pursue an associate’s degree. He had completed enough hours (39) to be
considered to be in his sophomore year. He was maintaining a schedule of twelve
credit hours per semester, which required him to go to school four days per week for
one and a half to three hours per day. R. at 84-85. His grades were in the B and C
range, and he did six hours of homework per week and spent an additional two hours
per week on a computer for an online class. Plaintiff took his own notes in class. R. at
96-98. He further testified that pain prevented him from performing manual labor and
sitting for prolonged periods of time. He could only sit for thirty minutes at a time and
needed to shift every five minutes, but after a minute or two could sit down again. He
estimated he could stand for five minutes at a time (after which he would have to rest for
ten minutes) and walk for one to two blocks (after which he would have to rest for up to
one hour. R. at 88-89, 99. Plaintiff also reported experiencing tremors most of his life,
but they had worsened following his back injury. The combination of pain and tremors
kept him from lifting very much weight. He estimated he could lift and carry two to eight
pounds. R. at 88-91, 99. With respect to anxiety, Plaintiff testified the medication he
was taking did not help, and he feared crowds to the point that he could not function: he
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could not speak in front of the class, experienced six panic attacks per month and
additionally felt like a panic attack was impending on a daily basis. R. at 91-93. In
addition to going to school and doing homework, his daily activities consisted of waking
his kids and getting them to school. He was able to dress, care for himself, prepare
meals, clean the kitchen, and load the dishwasher on his own. He also spent three to
four hours per day lying down and elevating his legs or using the Jacuzzi. R. at 94-95.
The vocational expert (“VE”) at the first hearing was presented a series of
hypothetical questions, some of which are described here. The first asked him to
assume a person of Plaintiff’s age, experience and education who could lift fifty pounds
occasionally and twenty-five pounds frequently, stand and walk six hours per day, sit six
hours per day, and had an unlimited ability to push and pull. The VE testified such a
person could perform some of their prior jobs, including work as a truck driver and
medical transporter. The second through fifth hypotheticals were based on Dr. Chabot’s
opinions over time regarding Plaintiff’s capabilities. One of those questions
incorporated Dr. Chabot’s opinions around the time he released Plaintiff to return to
work with a lifting restriction of fifty pounds and a disability rating of 12% permanent
partial disability to the body as a whole. The VE answered this hypothetical by
indicating Plaintiff could return to his past work as a truck driver or medical transporter.
R. at 104-05.
The sixth hypothetical asked the VE to assume Plaintiff was limited to lifting ten
pounds frequently, twenty pounds occasionally, standing and walking six hours a day,
sitting six hours a day, and required the option to sit or stand at will. The VE testified
such a person could not perform their past relevant work, but could work as a cashier or
information clerk. The VE further stated that the jobs actually required very little lifting:
the information clerk would involve “little” lifting, and the cashier job would require lifting
eight to ten pounds maximum. R. at 106-07. The seventh hypothetical asked the VE to
assume the person was limited to sedentary work; the VE testified such a person could
not return to their past relevant work but could work as a document preparer and
telephone clerk. The former job was described allowing a person to sit and stand, while
the latter job might or might not. R. at 107-08.

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At the second hearing, Plaintiff testified his pain had intensified in the fourteen
months since the first hearing. He testified he had five bulging discs and had been
diagnosed as suffering from central benign tremor. He no longer helped around the
house and spent more time watching TV and reading. R. at 122-23. Walking
exacerbated his pain, and he now walked with a limp. R. at 125, 128-29. He was still
going to school three times a week and planned to graduate that year with an
associate’s degree. He planned to pursue a bachelor’s degree “in construction
management, and become like an overseer of like a housing complex, or, you know,
something that requires no manual labor, maybe an insurance adjuster.” R. at 124. He
also testified that the tremors he suffered were worse, that he could no longer use a
computer touch screen, had difficulty typing, and that the school provided him with a
note taker. R. at 130. He still avoided crowds because he thought people were looking
at and talking about him. He also claimed to have difficulty concentrating and
experienced feelings of worthlessness. R. at 132.
The ALJ found Plaintiff regained the ability to perform medium, light, and
sedentary work within twelve months of his alleged onset date, as he had the ability to
lift, carry, push, and pull twenty-five pounds frequently and fifty pounds occasionally,
stand or walk six hours per day, and sit for six hours per day. R. at 37. In reaching this
conclusion the ALJ discounted the effects of Plaintiff’s anxiety and depression, noting
his claims were inconsistent with his grades in college, the sparse treatment he
received, and inconsistencies within and between those who evaluated his mental
condition. The ALJ also found Dr. James Thompson’s opinions were inconsistent with
his treating notes, and that Plaintiff’s testimony was inconsistent with his reports to
doctors, the course of treatment from doctors, and his daily activities.

II. DISCUSSION

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“[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).

A. Failure to Defer to Dr. James Thompson’s Opinion

Plaintiff contends the ALJ erred in failing to defer to Dr. James Thompson’s April
23, 2009, Medical Questionnaire (R. at 932-39). 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., Anderson v.
Astrue, 696 F.3d 790, 793-094 (8th Cir. 2012); Halverson v. Astrue, 600 F.3d 922, 92930 (8th Cir. 2010). There are a number of factors justifying the ALJ’s decision not to
defer to this opinion. First, it describes a degree of limitation greater than is contained
in any other report Plaintiff made to Dr. James Thompson. Second, it describes a
degree of limitation that is inconsistent with what Plaintiff reported to other treating
doctors. Third, Dr. James Thompson was not the only treating doctor with opinions in
this case. For instance, while neither completed a Medical Questionnaire or a Medical
Source Statement, both Dr. Chabot and Dr. Richard Thompson also qualified as treating
physicians – and they indicated a degree of limitation that was not as extensive as
described by Dr. James Thompson. Fourth, Dr. James Thompson appears to have not
conducted any diagnostic testing. At best, he simply recorded what Plaintiff stated –
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and, as noted, even that point is in question given that Plaintiff did not describe
limitations of the sort reflected in the Medical Questionnaire.
In this same argument Plaintiff contests the ALJ’s failure to properly evaluate Dr.
Wilson’s opinion as expressed in her Medical Questionnaire. Dr. Wilson saw Plaintiff on
one occasion, so she is not a treating physician entitled to deference. Moreover, her
opinion is inconsistent with Dr. Bray’s, and the ALJ was not legally compelled to accept
one opinion over the other. The ALJ was entitled to discount Dr. Wilson’s assessment
based not only on the conflicting report from Dr. Bray, but also the inconsistencies
between her Medical Questionnaire and (1) her own narrative report, (2) Plaintiff’s
statements to his treating doctors, and (3) Plaintiff’s daily activities.

B. Credibility Assessment and Determination of Residual Functional Capacity

In related arguments, Plaintiff contends the ALJ failed to properly evaluate his
credibility and made improper medical judgments in ascertaining his residual functional
capacity (“RFC”). These errors allegedly led to improper hypothetical questions. The
Court disagrees.
The critical issue is not whether Plaintiff experiences pain, but rather the degree
of pain that he experiences. E.g., 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
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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. While current regulations incorporate these considerations, the
Eighth Circuit has declared that the Apreferred practice@ is to cite Polaski. Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
Plaintiff’s arguments start from a common origin: that the ALJ misapprehended
the facts. Plaintiff essentially invites the Court to reweigh the evidence, but the standard
of review requires this invitation be declined. Even if the Court would have reached a
different result had it independently considered the evidence (which may or may not be
true in this case), the Court cannot reverse on this basis. E.g., Buckner v. Astrue, 646
F.3d 549, 556 (8th Cir. 2011). The ALJ is the factfinder, and the only question is
whether there is substantial evidence to support those findings. The Court concludes
there is. Plaintiff’s statements to doctors and treatment history suggest limitations that
are far less onerous than he described in his testimony. Treating doctors treated
Plaintiff rather conservatively, which belies the degree of pain he alleges. Plaintiff’s
attendance in college is laudable, and while it may not satisfy the legal definition of
“substantial gainful activity,” that activity is inconsistent with the specific limitations
Plaintiff alleges in this case. This does not mean that the ALJ was obligated to reach
the findings she did; all it means is that there is substantial evidence in the Record to
support them.
Plaintiff faults the ALJ for not incorporating limitations based on tremors. As
noted earlier, the Record does not (as Plaintiff suggests) clearly indicate a diagnosis of

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tremors. Moreover, Plaintiff does not allege tremors imposed any limitations on his
abilities until sometime between the first hearing in February 2009 and the second
hearing in April 2010 – so the Record does not clearly establish tremors imposed any
limitations before his insured status expired in December 2009. The absence of
documentation or medical support justified the ALJ’s decision to conclude Plaintiff’s
tremors did not impose a limitation that needed to be incorporated in the RFC.
Similarly, the Record does not compel a finding that anxiety or depression
imposed any limitations on Plaintiff’s RFC. Plaintiff was able to attend class, earn good
grades, and otherwise function. His testimony about the degree to which these
conditions affected him varied widely from his statements to treating doctors and other
professionals, and the ALJ was entitled to discount his testimony and conclude they
imposed no real limitations.
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 that existed was
sufficient to support the ALJ=s determination about Plaintiff=s capabilities.2

III. CONCLUSION

Substantial evidence in the Record as a whole supports the Commissioner’s final
decision. Therefore, that decision is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: April 24, 2013

2

While it is not a determination the Court is empowered to make, the Court
nonetheless notes that the Record amply demonstrates Plaintiff can perform sedentary
work (and probably light work). His academic career provides a substantial basis for
this conclusion.
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