Gwin v. Colvin
ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 8/9/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WALLACE EDWARD GWIN,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, )
Case No. 16-CV-3245-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 Title II application for a period of disability and disability insurance
benefits. For the following reasons, the Commissioner’s decision is affirmed.
I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to a determination
whether the decision is “supported by substantial evidence on the record as a whole.
Substantial evidence is less than a preponderance but…enough that a reasonable mind
would find it adequate to support the conclusion.” Andrews v. Colvin, 791 F.3d 923, 928
(8th Cir. 2015) (citations omitted). “As long as substantial evidence in the record
supports the Commissioner's decision, we may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, or
because we would have decided the case differently.” Cline v. Colvin, 771 F.3d 1098,
1102 (8th Cir. 2014) (citation omitted). Though advantageous to the Commissioner, this
standard also requires the Court consider evidence that fairly detracts from the final
decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2015) (citation omitted).
Substantial evidence means “more than a mere scintilla” of evidence; rather, it is
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn A. Colvin as the defendant in this suit.
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).
Plaintiff was born in 1964, and is a high school graduate. R. at 25, 58, 114, 117,
403. He previously worked as a fence erector, truck foreman, and electrical technician.
R. at 24, 62-67, 117, 119. In 2010, Plaintiff applied for disability and disability insurance
benefits, alleging an onset date of November 17, 2009. R. at 403-04. His onset date
was later amended to May 28, 2010. R. at 13, 112-14. Plaintiff’s application and
requests for reconsideration were denied, and he requested a hearing before an
administrative law judge (“ALJ”). R. at 188-99. A hearing was held in January 2013. R.
at 107-52. In March 2013, ALJ Cynthia Hale issued her decision, finding Plaintiff was
not disabled. R. at 166-77.
Plaintiff appealed the ALJ’s decision to the Appeals Council. The Appeals
Council remanded the matter because the jobs identified by the ALJ were not
compatible with Plaintiff’s residual functional capacity (“RFC”). R. at 185. The ALJ was
also directed to obtain supplemental evidence from a vocational expert (“VE”) to “clarify
the effect of the assessed limitations on the claimant’s occupational base.” R. at 186.
The Appeals Council directed the ALJ to “resolve any conflict between the occupational
evidence provided by the vocational expert and information in the Dictionary of
Occupational Titles.” Id.
Upon remand, ALJ Mark Clayton held a hearing in July 2015. R. at 45-106. On
November 11, 2015, he issued his decision, finding Plaintiff was not disabled. R. at 1326. The ALJ found Plaintiff had the severe impairments of degenerative disc disease in
the cervical spine and lumbar spine, right median nerve neuropathy, and depression.
R. at 16. The ALJ determined Plaintiff had the following RFC:
[P]erform light work as defined in 20 CFR 404.1567(b) except that he was
unable to climb ladders, ropes, or scaffolds. He could occasionally climb
ramps and stairs. He could occasionally balance, stoop, kneel, crouch,
and crawl. He could frequently reach overhead bilaterally. He could
frequently handle and finger with the right, upper extremity. He would
need to avoid concentrated exposure to hazards such as working around
unprotected heights and dangerous, moving machinery. He is limited to
performing simple, routine, no more than SVP 2-type tasks.
R. at 19. Based upon the RFC and the VE’s testimony, the ALJ concluded Plaintiff
could work as a copy machine operator and bakery line worker. R. at 25-26. Plaintiff
appealed the ALJ’s decision to the Appeals Council, which denied his appeal. R. at 1-4.
Plaintiff now appeals to this Court.
Plaintiff argues the ALJ’s decision must be reversed because (1) the ALJ failed to
properly weigh the medical opinion evidence, (2) the ALJ failed to properly evaluate his
credibility, and (3) the ALJ relied on flawed testimony from the VE.
A. Medical Opinion Evidence
Plaintiff claims the ALJ erred in affording “little weight” to the opinion of his
treating physician, James Hardigan, D.O. Generally, a treating physician’s opinion is
given more weight than other sources in a disability proceeding. 20 C.F.R. §
404.1527(c)(2). 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. See Anderson, 696 F.3d at 793-94; Pena v. Chater, 76 F.3d 906, 908 (8th Cir.
1996). The ALJ must “give good reasons” to explain the weight given the treating
physician’s opinion. 20 C.F.R. § 404.1527(c)(2); Anderson, 696 F.3d at 793.
In May 2011, Dr. Hardigan opined Plaintiff could sit for eight hours in an eighthour workday but would need to get up and move four times during the workday, and he
could stand/walk four hours in an eight-hour workday. R. at 965-66. He also concluded
Plaintiff could frequently lift and carry up to ten pounds but occasionally lift and carry
between ten and twenty pounds. R. at 966. Dr. Hardigan indicated Plaintiff had no
significant limitations with regard to repetitive reaching, handling, fingering, or lifting, and
had minimal limitations using his upper extremities. Id. He stated Plaintiff would have
to miss work one day per month. R. at 969. But, seven months later, December 2011,
Dr. Hardigan stated Plaintiff was “totally disabled.” R. at 924.
Then, in March 2012, Dr. Hardigan determined Plaintiff could sit for four hours in
an eight-hour workday but would need to get up and move around every hour. R. at
928. Plaintiff, in Dr. Hardigan’s opinion, would be unable to stand or walk for more than
one hour in an eight-hour workday. Id. He explained Plaintiff could occasionally lift and
carry up to five pounds, and could lift (but never carry) up to ten pounds. R. at 928-29.
Plaintiff would be absent for work more than three times per month. R. at 930. Several
months later, in a December 2012 letter, Dr. Hardigan stated his treatment of Plaintiff
has been conservative, he “has had no improvement in the past year,” and his
prognosis is “poor.” R. at 956.
The ALJ considered the opinions proffered by Dr. Hardigan, and afforded “little
weight” to his opinions for several reasons. R. at 21-22. First, the ALJ noted Dr.
Hardigan is not a specialist in orthopedics or neurology. Id. Second, the ALJ
determined Dr. Hardigan’s finding that Plaintiff’s impairments were disabling or
worsening is not supported by the clinical and diagnostic findings, which only suggest
mild impairment. R. at 22; see also R. at 637, 645, 651-52, 726, 921-22. Third, Dr.
Hardigan’s opinion is inconsistent with his admission he conservatively treated Plaintiff
over the years. Id. Fourth, Dr. Hardigan’s view of Plaintiff’s limitations “appears to rely
heavily on the claimant’s subjective complaints, rather than the objective evidence.” Id.
Finally, Dr. Hardigan’s opinion did not suggest Plaintiff had significant limitations with his
right hand, which is contrary to Plaintiff’s testimony at the hearing. R. at 22, 69-71, 12426.
The Court reviewed the record and finds substantial evidence supports the ALJ’s
decision to discount Dr. Hardigan’s opinion. The Court also finds the ALJ provided
good reasons explaining the weight he afforded Dr. Hardigan’s opinion, and the ALJ
properly afforded Dr. Hardigan’s opinion little weight. The Court affirms the ALJ’s
decision in this respect.
B. Plaintiff’s Credibility
Plaintiff also maintains the ALJ erred in evaluating his credibility. The familiar
standard for analyzing a claimant’s subjective complaints is set forth in Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984):
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
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 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.
Id. at 1322. The ALJ “need not explicitly discuss each Polaski factor...[t]he ALJ need
only acknowledge and consider those factors before discounting a claimant’s subjective
complaints.” Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (citations
omitted); see also Samons v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007).
The ALJ found Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [his] symptoms are not entirely credible….” R. at 20. The ALJ
articulated several reasons for this finding. First, the ALJ noted Plaintiff’s daily activities
do not support the degree of limitation alleged by Plaintiff. Plaintiff is capable of living
alone, and he is self-sufficient. He performs all of his household chores, and is capable
of driving himself to places three or four times per week. The ALJ also considered
Plaintiff’s ability to regularly socialize at a tavern and consume up to ten beers per day.
Because upon the claimant’s testimony, the ALJ found Plaintiff’s physical and mental
impairments were only partially limiting. R. at 20, 60-62, 75-81, 463-70.
Second, the ALJ considered the objective medical evidence when evaluating
Plaintiff’s credibility. He found the medical evidence did not support the limitations
alleged by Plaintiff. The ALJ noted Plaintiff had a good work history until 2009 when he
lost his job due to the economic downturn, which reflected well on his credibility. But
Plaintiff’s allegations of limiting pain and limited use of his right hand were not supported
by objective clinical and diagnostic findings, which suggested only mild impairment.
Further, objective testing of Plaintiff’s spine indicated only mild impairments. And
physical examinations of Plaintiff reflected only “mild” impairments. R. at 20-21, 425-31,
605, 636-37, 723-24, 726, 763, 773-77, 950-54, 958-61.
Third, the ALJ considered Plaintiff’s physicians’ recommended conservative
treatments for back and neck pain. These recommendations included stretching
exercises, a transcutaneous electrical nerve stimulation (“TENS”) unit, and nerve
blocks. R. at 21, 869-71. Upon review of Plaintiff’s objective diagnostic and clinical
findings as well as the conservative treatment history, the ALJ found Plaintiff was not as
limited as he alleged. R. at 21.
The ALJ acknowledged and considered the Polaski factors. R. at 21-27. The
ALJ is not required to discuss each factor in turn, but must merely consider the Polaski
factors. See Eichelberger, 390 F.3d at 590. To the extent Plaintiff argues the medical
evidence could support a decision contrary to the ALJ’s, the Court will not substitute its
judgment for that of the ALJ. See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir.
2003) (stating “[t]he credibility of a claimant’s subjective testimony is primarily for the
ALJ to decide, not the courts.”). The Court finds the ALJ did not err in analyzing
C. Limitations in Concentration, Persistence, or Pace
Plaintiff contends the ALJ’s hypothetical posed to the VE did not accurately
describe Plaintiff’s limitations regarding concentration, persistence, or pace. During the
2015 hearing, the ALJ asked the VE if a person who, among other things, was limited to
“doing only simple, routine, no more than SVP 2-type tasks” would be able to work. R.
at 94. The VE answered affirmatively, identifying two positions. R. at 94-95. Plaintiff
argues the ALJ should have included greater limitations in concentration, persistence,
or pace in the hypothetical question posed to the VE.
In his decision, the ALJ generally noted Plaintiff had moderate difficulties with
regard to concentration, persistence, or pace. R. at 18. The ALJ further concluded
Plaintiff had only mild difficulties in concentration because he is capable of driving
several times per week, and driving requires a reasonable degree of concentration. R.
at 18. The hypothetical question posed by the ALJ to the VE incorporated the limitation
that the hypothetical person could only perform simple, routine, no more than specific
vocational preparation (“SVP”) 2-type tasks. R. at 19.2 An SVP level of two refers to
unskilled work, which “needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 416.968(a).
Based on the record, the hypothetical question limiting a person to simple,
routine tasks requiring little to no judgment appropriately captures Plaintiff’s mild to
moderate difficulties in maintaining concentration, persistence, or pace. See Howard v.
Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (finding “simple, repetitive, routine tasks”
captures difficulties in concentration, persistence, or pace). Accordingly, the Court finds
the hypothetical question posed to the VE is supported by the record.
The Court concludes there is substantial evidence in the record as a whole to
support the ALJ’s decision. The Commissioner’s decision denying benefits is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: August 9, 2017
These limitations are also included in the ALJ’s RFC determination (R. at 19), to which
Plaintiff lodges no objection on appeal.
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