Girshner v. Colvin
ORDER. The Commissioner's decision is affirmed. Signed on 7/3/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
DAVID J. GIRSHNER,
NANCY A. BERRYHILL,
of Social Security,
Case No. 4:16-cv-03451-NKL
Plaintiff David Girshner appeals the Commissioner of Social Security’s final decision
denying his application for disability insurance benefits and supplemental security income under
Title II of the Social Security Act. The decision is affirmed.
Girshner was born in 1953. He alleges that he became disabled beginning 8/12/2013.
His date last insured was 3/31/2014. Following a hearing, the Administrative Law Judge denied
Girshner’s application on 10/6/2015. The Appeals Council denied his request for review on
9/20/2016. In this appeal, Girshner challenges the ALJ’s residual functional capacity (“RFC”)
assessment and the ALJ’s finding that he can perform past relevant work.
In August 2012, Girshner saw Marsha Taylor, M.D., for chronic lower back pain and
lumbar disc strain. Dr. Taylor characterized the pain as intermittent and noted that Girshner
treated it with Acetaminophen and Aleve.
Dr. Taylor’s examination noted midline spinal
tenderness in the lumbar region, decreased extension, decreased lateral bending, a positive
crossed straight leg raise, and a negative straight leg raise.
In April 2013, Girshner again saw Dr. Taylor for chronic lower back pain, described as
moderate in severity and intermittent in frequency. His range of motion, including lateral
bending, was normal, except for mildly decreased extension, and he tested negative on a straight
leg raise test. Dr. Taylor diagnosed lumbar disc degeneration and recommended an MRI of the
lumbar spine. In addition, she “stressed the importance of regular exercise.” Tr. 262.
In November 2013, Girshner visited Dr. Taylor for his wellness exam and requested
medication refills for his osteoarthritis prescription. He complained of a decreased range of
motion and morning stiffness in his shoulders, back, and knees. At this visit, there was no
specific mention of any back pain, aside from his concerns about osteoarthritis.
On May 16, 2014, Girshner again saw Dr. Taylor for chronic back pain, described as
moderate in severity and constant in frequency. Girshner described his status as worse but did
not complain of nighttime pain. Dr. Taylor described his only attempted treatment as “rest.”
Girshner’s examination revealed midline spinal tenderness and paralumbar tenderness in the
lumbar region with moderately decreased extension. Girshner had a positive straight leg raise
test and was prescribed Norco for pain. Dr. Taylor diagnosed lumbar spondylosis and ordered an
MRI of the lumbar spine.
The May 29, 2014 MRI revealed “mild subacute to chronic
degenerative spondylosis of the lumbar spine, most severe at the level of L4-5.” Tr. 252.
At Girshner’s May 30, 2014 appointment, Dr. Taylor noted his back pain as “better” in
status. Dr. Taylor again characterized the pain as moderate in severity and constant in frequency,
as well as with radiation in the left leg below the knee. Girshner also reported having several
weeks of left foot pain, aggravated by walking. Dr. Taylor diagnosed plantar fasciitis and
recommended Girshner not wear flip flops and use indepth soles with adequate cushion. She
noted that walking and bending aggravated the pain, and rest and muscle relaxers alleviated it.
At Girshner’s follow up appointment on October 31, 2014, Dr. Taylor described the
status of the pain as “symptoms are stable” with alleviating factors noted as rest, NSAIDs, and
muscle relaxers. Tr. 281. Dr. Taylor recorded the pain as moderate in severity and intermittent
in frequency with radiation in the left leg above the knee. Bending was the only factor noted as
aggravating the pain. Tr. 281. Girshner again tested positive on the straight leg raise test.
Thomas Corsolini, M.D., a non-treating specialist, performed a physical consultative
examination on 7/15/2014. Dr. Corsolini reported that Girshner had negative straight leg raising
and that he was able to “walk smoothly without a limp or hesitation and is able to squat
independently.” Tr. 276. Girshner’s upper extremity strength was also full. Tr. 276. Dr.
Corsolini opined that Girshner had “some abnormality” in the lower back. Tr. 277. He further
opined that, although he did not have Girshner’s MRI scans, based on his clinical examination
and how Girshner “appears at this time,” Dr. Corsolini did not believe he needed any limitations
on standing or walking, and that he was “capable of lifting and carrying at least 20 pounds on an
occasional basis.” Tr. 277.
Arthur Brovender, M.D., a non-examining, non-treating orthopedist who testified as an
expert at the hearing opined that Girshner did not have a severe impairment meeting listing
1.04(a) and that Girshner could lift fifty pounds occasionally and twenty pounds frequently. Dr.
Brovender assessed the severity of Girshner’s spondylosis as “mild.” Tr. 17. Dr. Brovender
testified that Girshner had no limitations in standing, walking, and sitting; that he could
occasionally climb stairs, ladders, ramps, and scaffolds; he could occasionally stoop, kneel,
crouch, and crawl; he could occasionally push and pull with his arms, and that his reaching,
handling, fingering, and feeling had no limitations.
Additional History Submitted to the Appeals Council
On 11/18/2015, several weeks after the hearing, Paul Glynn, D.O., issued a medical
source opinion. He opined that Girshner could lift and carry ten pounds frequently and twenty
pounds occasionally; that he could stand and/or walk two hours and sit for two hours out of an
eight hour work day; that he would be limited in pushing and pulling; that he should limit his
stooping, crouching, crawling, and kneeling to occasional use; that he should only occasionally
use stairs and never ladders; that he would need to take unscheduled breaks in an eight hour
work day due to pain and fatigue; and that the claimant would be limited in his ability to
concentrate and that he would miss work due to his severe impairments. Tr. 290-92.
Girshner testified that he was fifty-eight years old and completed two years of college
education. He is able to read, write, and do simple arithmetic. He has not worked either parttime or full-time since 8/12/2013. He lives by himself, does the cooking, washes the dishes, does
his laundry, and sweeps, mops, and vacuums his home. When he goes to the grocery store, he
generally goes by himself and is able to carry his grocery bags inside. He still mows his yard
with a riding mower, feeds his chickens, and gathers chicken eggs. He also maintains a fifteen
by fifteen foot vegetable garden for his own use.
Girshner testified that his back and foot pain were the most likely to prevent him from
working, which he rated as a severity of four on a constant basis. He characterized his pain as
shooting up as high as an eight when walking, bending over, or lifting things. He testified that
because of the pain, he drives less than before but can still drive up to one hour before needing to
rest and can sit for approximately one hour. He estimated that he can walk and stand for no more
than fifteen minutes before having to stop and rest, and when he has to walk further than 100
yards, he uses a cane. He also reported that when tending to his garden, he uses knee pads and
crawls to alleviate the pressure on his back and feet.
Girshner reported foot pain in both feet beginning about eighteen months ago and that the
sole treatment—an injection given by Dr. Taylor—did not reduce the pain. He reported taking
“as little as possible” of his hydrocodone for the pain because he is “trying to kind of wean
[himself] off of it,” and he estimated taking this pain reliever only once a week to help him sleep.
Tr. 58. Girshner reported that treatment for his back pain, which radiates into his left leg and
knee, was limited to three epidural injections he received about seven or eight years ago but
nothing else. Otherwise, he has treated this back pain only with over-the-counter medications
like Ibuprofen and Aleve.
He also testified that he lies on the couch or on a bed for
approximately thirty minutes about eight to ten times per day in order to alleviate the pain.
Girshner previously worked for Rainy Gas Company filling and delivering 200-pound
propane bottles to customers, refurbishing and recertifying tanks, and replacing tank valves. He
testified that he usually used a dolly for transporting the 200-pound bottles and seldom had to
actually lift them. In 2011 and 2012, Girshner was self-employed. He and his son ran a lawncare service, as well as collected and sold aluminum and scrap recycling from the river. He
stated that bagging up the recycling required lifting that was “[v]ery seldom over 20 pounds”
because he would get his son or someone else to help him get the heavier bags onto the trailer.
George Horne testified as a vocational expert at the hearing.
The ALJ posed a
hypothetical question assuming an individual with Girshner’s education, training, and work
experience. The individual could perform medium work, climb stairs and ramps frequently;
stoop, kneel, crouch, crawl frequently; climb ladders, scaffolds occasionally; pushing and pulling
with arms, legs, and reaching in all directions frequently. The vocational expert opined that the
individual could perform the past work of station operator, salvage laborer, and truck driver. The
ALJ posed a second identical hypothetical to the vocational expert except with occasional on
climbing stairs and ramps, stooping, kneeling, crouching, and crawling, and occasional pushing
and pulling with legs. The vocational expert testified that such an individual would still be able
to perform the past work of station operator.
The ALJ made an alternative step five finding by asking the vocational expert if such an
individual could perform any other medium jobs. The vocational expert testified that there was
medium, unskilled work he could perform, such as a packager with 50,000 in the national
economy and back loader with 10,000 in the national economy.
The ALJ’s Decision
The ALJ found that Girshner had severe impairments of degenerative disc disease of the
lumbar spine and osteoarthritis. Tr. 12. However, the ALJ found that he did not have an
impairment or combination of impairments that met any Listings. Tr. 13. The ALJ concluded
that Girshner had the residual functional capacity to perform:
medium work as defined in 20 CFR 404.1567(c) except he could occasionally
climb ladders and scaffolds; he could frequently climb stairs and ramps, stoop,
kneel, crouch, and crawl; and he could frequently push and pull with the arms and
legs and reach in all directions.
The ALJ came to this conclusion, in part, by finding that Girshner’s subjective
limitations were not fully credible. The ALJ reasoned that Girshner’s medical records failed to
show treatment consistent with a disability and that his clinical examinations revealed he had
normal strength and gait, contradicting Girshner’s claimed limitations. The ALJ considered
medical opinion evidence that supported Girshner’s RFC, resolved conflicts between the
opinions, and explained how he had weighed them. Finally, the ALJ relied on vocational expert
testimony, finding that Girshner retained the ability to perform three of his past relevant jobs as
gas pumping station operator, salvage laborer, and delivery truck driver. Tr. 17-19. Also based
on vocational expert testimony, the ALJ proceeded to step five to make an alternative finding
that Girshner could still perform other jobs found in significant numbers in the national
economy. The ALJ concluded that Girshner was not disabled, and benefits were denied. Tr. 19.
Girshner argues that reversal is necessary because the ALJ did not properly weigh the
opinion evidence between the two main medical opinions in the record and did not review a postdecision opinion he submitted from a third doctor. He further argues that the Commissioner
erred by not correctly classifying his past relevant work as a gas station pumping operator. Thus,
the specific issues before this Court are: (1) whether substantial evidence supports the ALJ’s
RFC assessment and weighing of medical opinion evidence and (2) whether substantial evidence
supports the ALJ’s finding that Girshner could perform past relevant work.
The Court’s review of the Commissioner’s decision is limited to a determination of
whether the decision is supported by substantial evidence on the record as a whole. Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Substantial evidence is less than a preponderance but
enough that a reasonable mind might accept as adequate to support the Commissioner’s
conclusion. Id. The Court must consider evidence that both supports and detracts from the
Commissioner’s decision but cannot reverse the decision because substantial evidence also exists
in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). If the Court
finds that the evidence supports two inconsistent positions and one of those positions represents
the Commissioner’s findings, then the Commissioner’s decision must be affirmed. Wright v.
Colvin, 789 F.3d 847, 852 (8th Cir. 2015).
A. The RFC Assessment
Girshner argues that the ALJ incorrectly assessed his RFC by not properly weighing the
medical opinion evidence. Specifically, Girshner contends that the ALJ should have assigned
less weight to the opinion from the examining medical consultant, Dr. Corsolini, and more
weight to a medical source opinion from the non-examining medical expert, Dr. Brovender. In
addition, Girshner complains that the Commissioner did not review a post-decision opinion he
submitted from a third doctor, Dr. Glynn.
Residual functional capacity refers to what a claimant can still do despite physical or
mental limitations. 20 C.F.R. § 404.1545(a); Masters v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004). An ALJ must formulate the RFC based on all of the relevant, credible evidence in the
record. See Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012) (“Even though the RFC
assessment draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner.”) (quoting Cox v. Astrue, 495 F.3d 614, 619 (8th
Cir. 2007)). The RFC determination must be supported by substantial evidence, including at
least some medical evidence. Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000). Evidence
relevant to the RFC determination includes medical records, observations of treating physicians
and others, and a claimant’s own description of his limitations. McKinney v. Apfel, 228 F.3d
860, 863 (8th Cir. 2000) (citation omitted). The claimant has the burden to prove his or her RFC.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
First, although the ALJ’s credibility assessment was fundamental to the RFC
determination, Girshner offers little challenge to it. The ALJ must assess the credibility of a
claimant’s subjective complaints by considering: (1) the claimant’s daily activities; (2) the
duration, frequency, and intensity of pain; (3) dosage, effectiveness, and side effects of
medication; (4) precipitating and aggravating factors; and (5) functional restrictions. See Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ may also discount a claimant’s
subjective claims based on “inherent inconsistencies” in the record. Travis v. Astrue, 477 F.3d
1037, 1042 (8th Cir. 2007).
Here, the ALJ’s decision offered a detailed analysis of Girshner’s subjective complaints
within the context of the record as a whole. The ALJ acknowledged Girshner’s complaints of
back pain radiating into his left knee and that a May 2014 MRI scan revealed “mild”
spondylosis. Tr. 15, 252. The ALJ went on to explain that despite these complaints, Dr.
Corsolini’s consultative examination revealed Girshner had normal strength and normal reflexes.
Tr. 15, 276-77. The ALJ considered that Girshner had not sought any aggressive treatment for
his back pain. Girshner last received epidural injections at least seven years ago, and no doctor
had ever advised him to seek physical therapy, surgery, or pain management, such as a TENS
unit. Tr. 15, 58-59, 252.
The ALJ addressed his complaints about knee pain and his associated osteoarthritis
diagnosis. Tr. 15. The ALJ considered that Dr. Corsolini’s July 2015 examination revealed
Girshner had a clinically normal range of motion in his knees, as well as a normal and “smooth”
gait without any limp. Tr. 15, 277. As with his back pain, Girshner never sought any treatment
from a specialist for his knee pain. Tr. 15. Rather, all of his treatment was rendered by a general
practitioner, Dr. Taylor. Tr. 15, 157. Further, the ALJ cast doubt on Girshner’s testimony about
requiring a cane for mobility, observing that the record was devoid of any medical evidence that
the cane was prescribed by any of Girshner’s doctors or necessary. Tr. 15, 42, 65, 216.
Moreover, the ALJ found Girshner’s use of non-prescription pain medication was
inconsistent with his allegations about the level of pain he experienced. Despite Girshner’s
complaints of severe, disabling pain in his back and knees, Girshner stated he mainly used nonprescription pain medication, such as Aleve and Ibuprofen. He reported only having a few
prescription hydrocodone pills left but indicated he took these pills only once a week for sleep.
He had not renewed his prescription in months because he was trying to “wean” himself off of it.
In addition, the ALJ properly considered Girshner’s reported daily activities, an
important factor to the ALJ’s overall analysis. See Clevenger v. Soc. Sec. Admin., 567 F.3d 971,
976 (8th Cir. 2009) (despite mixed signals in case law, it is important for the ALJ to cite activities
as part of the credibility assessment). For example, despite Girshner’s complaints, Girshner
stated he lived alone; took care of his pets and chickens; prepared simple meals; washed dishes,
mopped, swept, and shopped; enjoyed gardening and tended to his own 15 by 15 foot garden;
and regularly mowed his lawn with a riding mower. Tr. 15-16, 61-62, 70, 211-17. See McDade
v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (McDade “was not unduly restricted in his daily
activities, which included the ability to perform some cooking, take care of his dogs, use a
computer, drive with a neck brace, and shop for groceries with the use of an electric cart.”).
Girshner also argues that the ALJ erred when he weighed the relevant medical opinion
evidence. The amount of weight given a treating medical source opinion depends upon support
for the opinion found in the record; its consistency with the record; and whether it rests upon
conclusory statements. An ALJ must give controlling weight to a treating medical source
opinion if it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques, and is not inconsistent with the other substantial evidence. Papesh v. Colvin, 786
F.3d 1126, 1132 (8th Cir. 2015). The opinion may be given “limited weight if it provides
conclusory statements only, or is inconsistent with the record.” Id. (citations omitted). In
addition, the ALJ “may discount or even disregard the opinion . . . where other medical
assessments are supported by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.” Id.
(quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)).
Dr. Corsolini is a specialist in his field and had the opportunity to examine Girshner for
The ALJ gave “great weight” to his opinion, which was based on a physical
consultative examination of Girshner on July 15, 2014. Tr. 16, 276. In his report, Dr. Corsolini
noted that he did not have Girshner’s MRI scans, but based on his clinical examination and how
Girshner “appears at this time,” he did not believe Girshner needed any limitations on standing
or walking and that he was “capable of lifting and carrying at least 20 pounds on an occasional
basis.” Tr. 277. He further opined that Girshner had “some abnormality” in his lower back but
that he had a negative straight leg raising test, and that he was able to “walk smoothly without a
limp or hesitation and is able to squat independently.” Tr. 276. Girshner’s upper extremity
strength was also full. Tr. 277-76.
The ALJ cited these opinions as consistent with the remainder of the record. Tr. 16.
Although the ALJ gave Dr. Corsolini’s opinion great weight, the ALJ elected to impose
additional limitations on Girshner’s RFC in order to give Girshner “the utmost benefit of the
doubt.” Tr. 16. Specifically, although Dr. Corsolini opined that Girshner did not need any
limitations on standing or walking and that he was capable of lifting and carrying at least twenty
pounds on an occasional basis, the ALJ instead found Girshner was limited as follows: he could
occasionally climb ladders and scaffolds; frequently climb stairs and ramps, stoop, kneel, crouch,
and crawl; and frequently push and pull with the arms and legs and reach in all directions. Tr.
14. Substantial evidence on the whole record supports the ALJ’s decision to give Dr. Corsolini’s
opinion great weight.
Dr. Brovender is a non-examining specialist in orthopedics and testified as a medical
expert at Girshner’s hearing. Tr. 16. Girshner contends that the ALJ “disregarded” part of Dr.
Brovender’s opinion, which provided for strength limitations greater than those assigned by the
ALJ. Girshner reasons that if the ALJ had found the additional limitations opined to by Dr.
Brovender—specifically, the limitation of occasionally pushing and pulling with his arms and
legs and occasionally stooping, kneeling, crouching, and crawling—then Girshner would be
limited to light, unskilled work instead of medium work.
The ALJ observed that much of Dr. Brovender’s opinion was consistent with Dr.
Corsolini’s opinion and the ALJ’s own review of the evidence. Consistent with the ALJ’s
findings, Dr. Brovender testified that Girshner’s impairments did not meet or equal a Listing
during the relevant period.
Dr. Brovender opined that Girshner’s use of a cane was not
appropriate, that his spondylosis was not unusual for his age, and that Girshner’s MRI scans had
shown only “mild” spondylosis.
Tr. 17, 42-43.
Consistent with the ALJ’s findings, Dr.
Brovender concluded that Girshner could lift 50 pounds occasionally and 20 pounds frequently;
that he had no limitations in standing, walking, and sitting in an 8-hour workday; that he could
occasionally climb stairs and ramps, ladders, and scaffolds; and that he had no limitations in
handling, fingering, or feeling; had no environmental limitations; and had no limitations to heat,
humidity, or wetness.
In contrast to Girshner’s contention that the ALJ “disregarded” the part of Dr.
Brovender’s opinion that differed from his own, the ALJ specifically explained this difference.
The ALJ observed that Dr. Brovender’s opinion differed from the ALJ’s findings by opining
greater postural limitations and limitations in the use of Girshner’s extremities.
Although the ALJ gave this portion of the opinion “little weight,” he still afforded the remainder
of Dr. Brovender’s opinion “some weight,” noting that it was not significantly different from his
own findings. Tr. 17.
Substantial evidence on the whole record supports the ALJ’s decision to give this portion
of the opinion less weight. First, Dr. Brovender reported that Girshner’s strength, gait, and
reflexes were normal in neurological testing. Tr. 38. The record does not reflect that any
treating provider ever instructed Girshner to limit these activities. Furthermore, Dr. Brovender
did not offer any specific explanation for why he suggested the greater postural and extremity
limitations. Tr. 40. When a non-examining doctor has not sufficiently explained his assessment,
the ALJ is not required to defer to it. See 20 C.F.R. § 416.927(c)(3) (“because nonexamining
sources have no examining or treating relationship with you, the weight we will give their
opinions will depend on the degree to which they provide supporting explanations for their
opinions”). Such opinions may appropriately be given less weight. See Anderson v. Astrue, 696
F.3d 790, 793 (8th Cir. 2012) (holding that the ALJ properly discounted a treating source opinion
due to its conclusory nature and because the assertions were not supported by and were
inconsistent with the information contained in the doctor’s treatment notes and other medical
3. Dr. Glynn
Finally, Girshner argues that the ALJ denied his claim without considering Dr. Glynn’s
post-hearing medical source opinion.
Girshner argues that Dr. Glynn’s opinion as to his
impairments would substantiate a finding that Girshner is limited to light, unskilled work.
Girshner submitted Dr. Glynn’s November 18, 2015 medical source statement to the Appeals
Council a little more than one month after the ALJ had issued his decision. Tr. 19, 292. In the
form, Dr. Glynn endorsed disabling-level limitations, including that Girshner could only sit,
stand, and walk for four hours total and that Girshner would miss more than four workdays per
month. Tr. 290-91.
If the Appeals Council finds that the ALJ’s actions, findings, or conclusions are contrary
to the weight of the evidence, including the new evidence, it will review the case. See 20 C.F.R.
§ 404.970(b). In its September 20, 2016 denial of further review, the Appeals Council did
consider Dr. Glynn’s evidence but concluded that “this information does not provide a basis for
changing the Administrative Law Judge’s decision.” Tr. 2. See, e.g., Joyner v. Astrue, 584 F.
Supp. 2d 1203, 1221 (N.D. Iowa 2008) (Appeals Council concluded “additional evidence . . .
do[es] not provide a basis for changing the Administrative Law Judge’s decision;” thus, doctor’s
report submitted by the claimant did not justify changing the ALJ’s decision); Holden v. Astrue,
2011 WL 2730914, *33-34 (E.D. Mo. 2011) (Appeals Council sufficiently considered evidence
when it listed the exhibits in its attached exhibit list).
Because the Appeals Council included Dr. Glynn’s evidence in the record but concluded
that it would not change the ALJ’s decision, the doctor’s reports are considered part of the
administrative record under review. See Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007)
(“Where, as here, the Appeals Council considers new evidence but denies review, we must
determine whether the ALJ’s decision was supported by substantial evidence on the record as a
whole, including the new evidence.”).
But as the Appeals Council concluded, substantial
evidence supports the ALJ’s decision notwithstanding Dr. Glynn’s opinion. First, Dr. Glynn did
not render his opinion until November 2015. Because the opinion was rendered after the ALJ’s
October 6, 2015 hearing decision, it is not relevant to the time period under review. Tr. 19. See
Sullins v. Shalala, 25 F.3d 601, 604-05 (8th Cir. 1994) (evidence of newly developed psychiatric
symptoms not relevant because they did not occur until a few weeks after the ALJ’s decision);
Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (to be relevant, post-ALJ-decision
evidence must pertain to the claimant’s condition during the relevant period). Second, even if
Dr. Glynn had rendered a timely opinion, he did not have any new or material clinical evidence
of signs or symptoms. As discussed previously, the Commissioner does not assign weight to
medical opinions that are unsupported and inconsistent with the remainder of the record. Finally,
the fact that this was a one-time consultative examination conducted after the ALJ’s decision
means that it should be considered a litigation advocacy document, not a treatment record. See
Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989) (doctor’s opinion solicited after the ALJ’s
negative decision is less convincing); House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“As
Dr. McFarlin had been urging House to seek disability benefits since before June 2002, the ALJ
had good reason to discount the new inconsistent opinions that House lacked the capacity to
engage in sedentary occupations that require prolonged sitting. These opinions were rather
obviously based upon Dr. McFarlin’s understanding of the relevant disability criteria, not on
For these reasons, the ALJ’s credibility assessment and weighing of medical opinion
evidence is supported by substantial evidence. Because the ALJ gave good reasons for finding
Girshner was not fully credible, the Court must defer to the ALJ’s judgment, even if the Court
would have reached a different decision had it been deciding the claimant’s case. See Buckner,
646 F.3d at 556; Smith, 756 F.3d at 625 (“We defer to the ALJ’s evaluation of [a claimant’s]
credibility, provided that such determination is supported by good reasons and substantial
evidence, even if every factor is not discussed in depth.” (internal citations omitted)). As part of
that credibility assessment, it is also the ALJ’s task to resolve conflicts among medical opinions,
not the Court’s. See Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008) (“The ALJ is charged
with the responsibility of resolving conflicts among medical opinions.”). Because substantial
evidence on the whole record supports the ALJ’s weighing of the conflicts in the medical
opinions and the ALJ’s RFC determination, these findings will not be disturbed.
The Assessment of Past Relevant Work
After assessing Girshner’s credibility, the ALJ concluded that Girshner retained the RFC
to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that he could
occasionally climb ladders and scaffolds; frequently climb stairs and ramps, stoop, kneel, crouch,
and crawl; and frequently push and pull with the arms and legs and reach in all directions. Tr.
14. See McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (the Commissioner must determine
a claimant’s RFC based on all of the relevant evidence, including medical records, observations
of treating physicians and others, and an individual’s own description of his limitations). See
also 20 C.F.R. § 404.1545.
Next, as required by step four of the sequential evaluation process, the ALJ compared
Girshner’s RFC with the demands of his past relevant work. The ALJ concluded that Girshner
retained the RFC to return to his past relevant work as a (1) gas pumping station operator, (2)
salvage laborer, and (3) delivery truck driver. Tr. 17. The ALJ based this conclusion on the
vocational expert’s testimony at the hearing. The ALJ is permitted to rely on a vocational expert
in order to determine whether a claimant can perform his past relevant work, either as he
performed it or as it is performed in the national economic. 20 C.F.R. § 404.1560(b)(2).
Girshner, however, challenges this step four assessment by arguing that the ALJ
misclassified his past relevant work as a station pumping operator instead of as a compressed gas
worker. Specifically, he contends that the ALJ’s analysis overlooked his testimony about lifting
propane bottles of up to 200 pounds, which he contends is better reflected in the description for
compressed gas worker.
Regardless of the merits of this argument, Girshner’s argument must fail because he does
not challenge the other two past jobs that the ALJ found he could perform: as a salvage laborer
and delivery truck driver. Tr. 73-75. So long as a claimant can perform a past job, either as it is
performed or as it is performed in the national economy, he will not be found disabled at step
four. See 20 C.F.R. § 404.1560(b)(2) (in order to progress beyond step four, a claimant must
show that she cannot perform past relevant work as she performed it or as it is generally
performed in the national economy). Therefore, even accepting Girshner’s contention as true,
Girshner was still found able to perform two other past jobs, which remain unchallenged and
result in a denial of benefits.1
Girshner’s reliance on Brown v. Apfel, 990 F.Supp. 714 (S.D. Iowa 1998) does not
require a different outcome. In Brown, the ALJ found at step four that the claimant was able to
do her past relevant work as a general office helper. Id. On appeal, the claimant argued that
there was no evidence to support a finding that she had ever worked general office helper duties.
Id. The district court agreed, explaining that there was no evidence in the record showing that
she could perform the duties required for a general office helper, and the only evidence about the
Furthermore, Girshner does not challenge the ALJ’s alternate step five determination that there
were also jobs existing in significant numbers in the national economy that Girshner could
perform: as a packager and bag loader. Tr. 18. However, because the Court affirms the ALJ’s
findings at step four, it need not evaluate this alternative finding.
claimant’s clerical duties was limited to a doctor’s note that she had “worked as a key punch
operator at different places.” Id. The district court also emphasized that the claimant was never
asked to describe her “clerical” work at the hearing. Id. at 718. In addition, the district court
explained that the vocational expert had testified that each of the claimant’s other past jobs was
precluded due to her exertional limitations. Id.
In contrast to Brown in which the ALJ found only one past position that the claimant
could perform, the ALJ in this case found three past jobs that Girshner could perform, two of
which he does not challenge. Also in contrast, the ALJ in this appeal specifically questioned
Girshner at his hearing about his past work as a salvage laborer and delivery truck driver,
resulting in a sufficiently developed record.
For these reasons, Girshner’s challenge to the ALJ’s step four determination must fail.
Girshner had a fair hearing and full administrative consideration. Substantial evidence on the
record as a whole supports the Commissioner’s decision.
The Commissioner’s decision is affirmed.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 3, 2017
Jefferson City, Missouri
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?