Pendleton v. Astrue

Filing 13

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS entered by Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
DONALD PENDLETON,

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

Case No. 12-03492-CV-S-ODS-SSA

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 insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401, et seq. The Commissioner’s decision is affirmed.

I. BACKGROUND
Plaintiff was born in 1966. R. 114. He received a GED and has previously
worked as a carpenter, deli clerk, restaurant manager, and truck driver. R. 29, 149,
155, 160, 223. Plaintiff alleges disability beginning May 27, 2007 due to degenerative
disc disease, pilonidal cyst, and depression. R. 114, 148.
On May 25, 2007, Plaintiff had an MRI scan of his back that showed multi-level
loss of vertebral body height and multi-level mild degenerative disc disease with no
evidence of acute compression fractures, disc herniation, or impingement. R. 232.
Plaintiff saw Doyle Hill, D.O. and complained of back problems. R. 256. A
musculoskeletal examination showed that Plaintiff has decreased range of motion and
increased myotension. R. 256. Dr. Hill prescribed hydrocodone and skelaxin. R. 356.
On January 23, 2008, Plaintiff returned to Dr. Hill and reported that the
hydrocodone was controlling his pain well. R. 255. Dr. Hill noted that Plaintiff’s lower

back pain was a 4 on a 10-point scale. R. 255. He assessed muscle spasms and
recommended that Plaintiff continue his medication regimen. R. 255.
From February to December 2008, Plaintiff saw Dr. Hill for general health care.
R. 239, 244-54, 257-63. On April 2, 2008, Plaintiff reported that flexeril was helping with
his muscle spasms. R. 253. On July 22, 2008, Plaintiff reported that his low back pain
“has really improved.” R. 248. On August 19, 2008, Plaintiff reported that he was
concerned about his fatigue but his back pain had improved since losing weight. R.
247. A musculoskeletal examination revealed decreased range of motion, increased
myotension, spasm, and complaints of pain. R. 247. Dr. Hill diagnosed Plaintiff with
muscle spasms, degenerative disc disease of the lumbar spine, obesity, and fatigue. R.
247. He proscribed flexeril and hydrocodone for Plaintiff’s pain and phentermine to help
Plaintiff lose weight. R. 247.
On November 11, 2008, Dr. Hill examined Plaintiff in connection with his
application for a Class “A” commercial driver’s license. R. 241. Plaintiff did not report
any health problems and specifically denied chronic low back pain and spinal injury or
disease. R. 241. Dr. Hill completed the physical examination portion of the application
and indicated that Plaintiff did not have any spinal or musculoskeletal problems. R. 243.
That very same day, Dr. Hill diagnosed Plaintiff with low back pain and degenerative
disc disease of the lumbar spine. R. 244.
Plaintiff went to the Good Samaritan Care Clinic between September 2008 and
January 2010 with complaints of back pain and depression. R. 268-81. Plaintiff
received Prozac for his depression and reported that his symptoms did not improve. R.
270. On April 6, 2009, the examining physician noted that Plaintiff had chronic back
pain and degenerative disc disease, but was taken off of his pain medication due to a
hydrocodone abuse. R. 276. On December 28, 2009, Plaintiff rated his back pain at a
7 on a 10-point scale. R. 270. Plaintiff requested hydrocodone, but was prescribed
other medication. R. 269-70. On January 25, 2010, Plaintiff complained of back pain
and requested “something stronger than Ultram” and received a trial of depo-medrol. R.
281.
On February 1, 2010, Plaintiff underwent a psychological evaluation at
Behavioral Health Care. R. 346-50. Plaintiff reported a history of depression, anxiety,
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anger issues, and problems getting along with others. R. 246. Plaintiff also reported a
history of addiction with hydrocodone and that he lost his job because of it. R. 246. A
mental status exam revealed that Plaintiff had an anxious mood, restless motor activity,
intact memory, fair attention/concentration, intact judgment/insight, and an average
intellect. R. 348-49. The examining mental health provider diagnosed Plaintiff with
bipolar disorder, generalized anxiety disorder, alcohol dependence in early full
remission, and opioid dependence in sustained full remission. R. 349.
Thomas Spencer, Psy. D., examined Plaintiff on February 17, 2010, at the
request of the Missouri Department of Social Services—Family Support Division. R.
291-95. Plaintiff reported a history of depression, anxiety, and anger issues. R. 291.
He reported taking celexa for about a month and experienced “measurable
improvement.” R. 291. Dr. Spencer diagnosed Plaintiff with mood disorder, alcohol
dependence in early remission, and bipolar disorder. R. 295. Dr. Spencer opined that
Plaintiff had a mental disability that would likely exceed 12 months and even with
treatment, compliance, and sobriety, prognosis is thought to be guarded. R. 295.
On March 1, 2010, Plaintiff visited the Good Samaritan Care Clinic. R. 298-99.
Plaintiff complained of chronic back pain, depression, and anger issues. R. 299.
Plaintiff reported that his ultram was not working but that he “got some improvement
[with] Flexeril.” R. 299. Plaintiff requested hydrocodone, but was prescribed flexeril and
cymbalta. R. 299.
On April 5, 2010, went to individual therapy and reported the following symptoms:
anxiety, fearfulness, muscle tension, irritability, impatience, depression, difficulty and
remembering things. R. 344. Plaintiff’s counselor assigned a GAF score of 34-37. R.
345. Plaintiff attended several other therapy sessions. R. 332-33, 338-39, 368-69, 37273, 376-77, 380-81, 411-29.
On April 13, 2010, Steven Akeson, Psy.D., completed a psychiatric review
technique form after reviewing Plaintiff’s medical records. R. 317-28. Dr. Akeson
acknowledged that Plaintiff had been diagnosed with anxiety, depression, mood
disorder not otherwise specified, and alcohol dependence in early remission. R. 317,
320-32, 323. He also found that Plaintiff had mild limitations in restrictions of activities
of daily living, and mild limitations in difficulties in maintaining concentration,
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persistence, or pace. R. 325. Dr. Akeson found that Plaintiff had moderate difficulties
in maintaining social functioning. R. 325.
Dr. Akeson completed a mental residual functional capacity assessment form. R.
314-16. He opined that Plaintiff was not significantly limited in 17 of 20 functional areas.
R. 314-15. He found that Plaintiff was moderately limited in the following areas: the
ability to understand and remember detailed instructions; the ability to carry out detailed
instructions; and the ability to interact appropriately with the general public. R. 314-15.
Dr. Akeson concluded that Plaintiff “retains the capacity to acquire and retain at least
simple instructions and sustain [concentration, persistence, or pace with] at least
simple, repetitive tasks.” R. 316. He also found that Plaintiff “can relate adequately to
others in settings which do not require frequent public contact or unusually close
interaction” and that Plaintiff “can adapt to changes in non-complex work environments.”
R. 316.
On April 14, 2010, Plaintiff went to the Mt. Grove Clinic complaining of back pain,
depression, and anxiety. R. 352. Plaintiff reported that his thoracic pain was constant,
sharp and a 7 on a 10-point scale. R. 352. A physical examination revealed that
Plaintiff appeared alert and oriented, and was in no acute distress. R. 353. Plaintiff’s
gait and station was normal, he had adequate muscle strength and tone, and normal
range of motion to neck and extremities. R. 354. Plaintiff experienced mild pain to back
palpitations and mildly decreased range of motion. R. 354. An MRI scan of Plaintiff’s
back revealed compression fractures, disc bulging, and disc protrusion in his thoracic
spine, but his lumbar spine was normal. R. 358-60.
Plaintiff received mental health care from Richard Aiken, M.D., between May and
November 2010. R. 334-37, 340-42, 370-71, 374-75, 378-79. In June 2010, Plaintiff
noted that he “feels the most normal that he has in many years” and that he was doing
“much better.” R. 336. In July 2010, Plaintiff reported that he was not doing as well as
before but that he had not taken his abilify medication for almost a month. R. 334. In
August 2010, Plaintiff reported that he had stopped taking his medication for two weeks
and that he did not do well during those two weeks. R. 378. In September 2010, Dr.
Aiken noted that Plaintiff was doing “rather well.” R. 374. In November 2010, Dr. Aiken
reported that Plaintiff was doing “very well.” R. 370. Dr. Aiken noted that Plaintiff
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indicated he wanted to work again but had a worker’s compensation case pending. R.
370.
On December 7, 2010, Plaintiff saw K. Douglas Green, M.D., for a new patient
initial consultation. R. 362. Plaintiff had some palpitation in his thoracic spine, but his
lumbar spine was unremarkable and he had negative straight leg raises. R. 364. He
had normal strength, intact cranial nerves, normal reflexes, normal gait, and performed
orthopedic maneuvers such as heel and toe walking without difficulty. R. 364-65. An xray of Plaintiff’s back revealed abnormal alignment and a compression fracture. R. 365.
Plaintiff continued to go to the Mountain Grove Medical Complex for his back
pain until December 2010. R. 382-409. In February 2011, Plaintiff received an epidural
steroid injection. R. 435-36. Plaintiff reported having two or three weeks of relief as a
result of the procedure. R. 433.
Plaintiff followed-up with his therapist, Jennifer Whitaker, APRN, on April 14,
2011, and reported that he was doing “quite well.” R. 413. Ms. Whitaker reported that
Plaintiff was sleeping well, eating healthy, was in a good mood. R. 413. Plaintiff
reported that “his level of energy is better than normal for him.” And that he is “[a]ble to
enjoy life a little bit.” R. 413.
An administrative hearing was held on June 15, 2011. At the hearing, Plaintiff
testified that he received unemployment benefits until 2010. R. 31. He continued to
look for a job during this time but said he had a hard time because of his criminal
record. R. 31. Plaintiff testified he could not hold a job because he would argue with
coworkers. R. 31. He stated that his medications have “made the world of difference”
in controlling his anger issues. R. 33. However, while still on medication, Plaintiff
testified that he still experiences depression and anxiety. R. 36. Plaintiff does some
household chores including dishes and laundry, but sometimes needs to take a break
when he is cleaning dishes. R. 37.
At step one of the five-step sequential process, the administrative law judge
(“ALJ”) determined Plaintiff had engaged in substantial gainful activity from May 27,
2007 through May 13, 2009. R. 12. The ALJ found that there had been a continuous
12-month period during which Plaintiff did not engage in gainful activity. R. 13. At step
two, the ALJ found Plaintiff has the following severe impairments: degenerative disc
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disease; bipolar disorder, and obesity. R. 13. At step three, the ALJ determined
Plaintiff does not have a listed impairment. R. 13. For steps four and five, the ALJ
concluded:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that the claimant can only
occasionally climb stairs, ramps, but never climb ropes, ladders, and
scaffolds. The claimant is limited to frequent reaching in all directions,
including overhead. The claimant should avoid concentrated exposure to
unprotected heights, excessive vibration, and hazardous machinery. The
claimant is limited to unskilled work only, which requires no more than
occasional contact with the public and co-workers.
R. 15. Next, the ALJ found, based on the vocational expert’s testimony, that Plaintiff is
unable to perform any past relevant work, but considering his age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national
economy that Plaintiff could perform, including folding machine operator, photo copy
machine operator, and collator operator. R. 20. Finally, the ALJ concluded Plaintiff is
not disabled. R. 20.

II. STANDARD

“[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). Substantial evidence is “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 Cir. 2010).

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III. DISCUSSION
A. The ALJ Properly Analyzed Plaintiff’s Credibility

Plaintiff argues the ALJ improperly analyzed his credibility. The Court disagrees.
“The credibility of a claimant’s subjective testimony is primarily for the ALJ to decide, not
the courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). The Court
must “defer to the ALJ’s determinations regarding the credibility of testimony, so long as
they are supported by good reasons and substantial evidence.” Guilliams v. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005). In evaluating a claimant’s subjective complaints, the
ALJ must consider the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984). The Polaski factors include: (1) the claimant’s daily activities; (2) the
duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors;
(4) the dosage, effectiveness, and side effects of medication; (5) any functional
restrictions; (6) the claimant’s work history; (7) the absence of objective medical
evidence to support the claimant’s complaints. Id.
Here, there is substantial evidence in the Record to support the ALJ’s finding that
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of the
symptoms were not fully credible. The ALJ pointed out that Plaintiff testified that his
back was in “continuous” pain which had “not improved” at all. R. 16, 34. However, the
record shows that Plaintiff’s degenerative disc disease was controlled with treatment
and medication. R. 18. Plaintiff reported that hydrocodone controlled his pain well and
that his low back pain “really improved.” R. 247-48, 255. Plaintiff also reported that his
back pain improved after some losing weight. R. 247. Next, the ALJ properly found that
Plaintiff’s conservative medical treatment undermined his claim. R. 16. See Gowell v.
Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (ALJ could find that the claimant’s conservative
treatment was not indicative of disabling symptoms). In terms of Plaintiff’s mental
health, the record shows that Plaintiff reported feeling “very well” in November 2010. A
month before the hearing, Plaintiff told his therapist that he was doing “quite well” and
also reported being in a good mood, sleeping well, eating healthy, and having better

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energy and generally “enjoying life.” R. 413. The Court finds there is substantial
evidence in the Record to support the ALJ’s decision to discount Plaintiff’s credibility.

B. The ALJ Properly Weighed the Medical Opinion Evidence

Next, Plaintiff argues the ALJ improperly evaluated the medical opinion evidence
when evaluating Plaintiff’s RFC. Specifically, he contends the ALJ erred by giving more
weight to Dr. Akeson’s examining opinion than Dr. Spencer’s examining opinion. The
Court concludes that there is substantial evidence in the record to support the ALJ’s
RFC assessment.
Here, the ALJ afforded great weight to Dr. Akeson’s opinion after finding it was
consistent with the record as a whole. R. 18. Dr. Akeson opined that Plaintiff had a
combination of mental impairments that caused mild restrictions in activities of daily
living, moderate difficulties in social functioning, and mild limitations in concentration,
persistence and pace. R. 314-16. The ALJ properly found that this opinion was
consistent with the substantial medical evidence of record. For example, Plaintiff’s
function report indicated he read books on his laptop, prepared simple meals, shopped
for groceries, drove, and attended to his personal care. R. 18, 196-99, 325. Next, Dr.
Akeson noted that Plaintiff experienced significant improvement in his mental condition
with medication. R. 18, 33, 291. As to concentration, persistence, and pace, the ALJ
noted that Plaintiff can follow directions and likes changes in routine. R. 18, 293-94,
325.
In contrast, the ALJ determined that Dr. Spencer’s opinion—that Plaintiff has a
mental illness that interferes with his ability to engage in employment—was not
consistent with the record as a whole. R. 18, 291-95. The reasons cited by the ALJ for
assigning minimal weight to Dr. Spencer’s opinion are supported by substantial
evidence in the record. First, Dr. Spencer’s opinion was inconsistent with his own
examination findings. See Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (ALJ
properly discounted a physician’s medical opinion that was inconsistent with the
physician’s clinical treatment notes). For example, Dr. Spencer observed that Plaintiff’s
attention, concentration, and fund of information were intact and that Plaintiff appeared
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adequately groomed, alert, oriented, and cooperative during the session. R. 18, 29395. Dr. Spencer also noted that Plaintiff was able to interpret proverbs and make simple
calculations without error. R. 18, 293-95. Second, the ALJ noted that Dr. Spencer
heavily relied on Plaintiff’s subjective report of symptoms and limitations. As previously
discussed, there is substantial evidence in the record to support the ALJ’s finding that
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of the
symptoms were not fully credible.

C. Plaintiff’s Remaining Arguments

The Court rejects Plaintiffs’ final arguments that (1) Plaintiff has greater mental
and physical limitations than listed in the RFC; (2) the ALJ did not rely on a medical
opinion from a state agency or an examining physician; and (3) the ALJ did not discuss
some of the “important medical findings.”
First, with regard to Plaintiff’s mental limitations, Plaintiff argues the ALJ should
have included greater restrictions to account for his problems getting along with others
and maintaining concentration. There is substantial evidence in the record to show that
Plaintiff’s condition improved with medication and controlled his anger problems. R. 14,
33, 291, 299, 336, 370, 374, 413, 417, 419, 428. Plaintiff also argues the ALJ did not
account for his difficulty maintaining concentration and staying on task. This argument
lacks merit as the record revealed that Plaintiff had intact attention, concentration, and a
fund of information. R. 294, 314-15. As to Plaintiff’s physical limitations, Plaintiff failed
to identify any specific restrictions or limitations that the ALJ did not account for in his
RFC finding. The ALJ acknowledged that Plaintiff has a severe back impairment, but
determined that the objective medical evidence showed that Plaintiff had normal gait
and station, adequate muscle strength and tone, normal range of motion in his
extremities, intact cranial nerves, no sensory deficits, normal reflexes, negative straight
leg raises, and the ability to perform orthopedic maneuvers such as heel and toe
walking. R. 353, 364-65, 437.
The Court also rejects Plaintiff’s argument that the ALJ erred by not relying on a
medical opinion from a state agency or examining physician. An ALJ is not required to
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base his RFC finding on a specific medical opinion. Instead, the ALJ is responsible for
basing Plaintiff’s RFC on all the relevant evidence. See Roberts v. Apfel, 222 F.3d 466,
469 (8th Cir. 2000).
Finally, with respect to Plaintiff’s argument that the ALJ did not discuss the
“important medical findings,” the ALJ spent a substantial amount of time in his opinion
discussing the medical evidence. R. 15-18. Further, an ALJ is not required to discuss
every single piece of the evidence submitted. Wildman v. Astrue, 596 F.3d 959, 966
(8th Cir. 2010). Moreover, as Defendant points out, Plaintiff failed to explain which
objective medical findings the ALJ should have included in his decision. Pl’s Br. at 13.

IV. CONCLUSION

There is substantial evidence in the Record to support the ALJ’s decision. 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: February 12, 2014

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