Grant v. Colvin

Filing 19

MEMORANDUM AND ORDER - IT IS ORDERED: The Commissioner's decision is affirmed. The appeal is denied. Judgment in favor of the Defendant will be entered in a separate document. Ordered by Chief Judge Laurie Smith Camp. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JONELLE GRANT,

CASE NO. 4:13CV3031
Plaintiff,
MEMORANDUM
AND ORDER

vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

This matter is before the Court on the denial, initially and on reconsideration, of
the Plaintiff’s disability insurance benefits (“DIB”) under the Social Security Act (“Act”),
42 U.S.C. §§ 401, et seq., and supplemental security income (“SSI”) benefits under Title
XVI of the Act, 42 U.S.C. §§ 1381, et seq.
PROCEDURAL HISTORY
Plaintiff applied for DIB on January 14, 2008. (Tr. 101, 275–82, 283–86.) Her
applications were denied initially on March 12, 2008, and again on reconsideration on
May 12, 2008, and she appealed the denial to an ALJ. (Tr. 101, 119, 142, 150, 155.)
The ALJ issued an unfavorable decision on December 31, 2009. (Tr. 123–31.) On
March 2, 2011, the Appeals Council reversed the ALJ’s decision and remanded the
case to a different ALJ for further consideration and a new decision. (Tr. 138–40.)
The ALJ held a second administrative hearing on May 18, 2011. (Tr. 80–100.) In
the new decision, dated June 23, 2011, the ALJ found that Plaintiff was not disabled
under the Act. (Tr. 37–48.) The ALJ found that Plaintiff had the severe impairments of
cervical degenerative disc disease, fibromyalgia, affective mood disorder, and anxiety
disorder. (Tr. 40.) The ALJ determined that Plaintiff nevertheless retained the residual

functional capacity to perform a reduced range of sedentary work. (Tr. 41.) After
consulting a vocational expert, the ALJ concluded that Plaintiff’s impairments would not
prevent her from performing work that exists in significant numbers in the national
economy, including work as a weight tester, cutter/paster, or administrative support
worker. (Tr. 47.) The Appeals Council denied Plaintiff’s request for review of the new
ALJ decision on December 12, 2012. (Tr. 1.) The Act provides for judicial review of a
“final decision” of the Commissioner of the Social Security Administration. See id. §§
405(g), 1383(c)(3). The new ALJ decision is therefore a “final decision” subject to
judicial review under 42 U.S.C. § 405(g).
FACTUAL BACKGROUND
I.

Documentary Evidence
Plaintiff holds a GED, and completed two years of college courses. (Tr. 84–85.)

Before her alleged disability began, Plaintiff worked in several customer-service jobs,
including gas-station clerk and waitress. (Tr. 322.) On June 23, 2011, the date of the
ALJ’s second decision, Plaintiff was forty-six years old. (Tr. 48, 101.)
Plaintiff was involved in a serious automobile accident on April 17, 2007. (Tr. 87.)
Plaintiff testified she became disabled as a result of the accident. (Tr. 321). Plaintiff saw
Dan Nguyen, M.D., on April 25, 2007, and reported neck and back pain following the car
accident.1 (Tr. 482.) During a follow-up appointment on May 2, 2007, Dr. Nguyen
diagnosed a cervical strain and referred Plaintiff for physical therapy. (Tr. 818.) Plaintiff
began attending regular physical therapy on May 9, 2007. (Tr. 527, 544, 824–33.)
1

Plaintiff saw Dr. Nguyen about thirteen times from October 2008 through August 2010. (Tr. 734,
735, 736, 737, 738, 739, 740, 741, 742, 743, 843, 844, 845.) It is undisputed that he is a treating
physician.

2

Plaintiff’s first physical therapist, Jason Merz, noted that Plaintiff’s current symptoms
included neck pain, constant ache and burning in back. (Tr. 527.) Merz noted that
Plaintiff reported that her pain was constant, worsened as the day progressed, and that
activity of any kind increased her symptoms. (Tr. 527.)
Plaintiff saw Dr. Nguyen three more times in May 2007. (Tr. 478, 481, 483.) On
May 29, 2007, Plaintiff complained of ongoing neck pain despite physical therapy, and
Dr. Nguyen ordered an MRI of her cervical spine. (Tr. 478.) The MRI showed a diffuse
disc bulge and moderate degenerative changes at the C4–C5 levels, a diffuse bulge at
the C5-C6 level, and mild degenerative changes at the C2–C4 level. (Tr. 520.)
In June and July 2007, Plaintiff reported ongoing neck pain to Dr. Nguyen. (Tr.
476, 479.) She said that physical therapy was not helpful anymore. (Tr. 476.) Dr.
Nguyen referred Plaintiff to Adeleke Badejo, M.D., a neurologist. (Tr. 476.) Dr. Badejo
examined Plaintiff on August 22, 2007. (Tr. 502–04.) Plaintiff complained of pain in her
right shoulder and arm. (Tr. 502.) However, Dr. Badejo found that she had normal
cranial nerves, motor and sensory function, and reflexes. (Tr. 504.) After reviewing MRI
results, Dr. Badejo felt that Plaintiff’s C4–C5 disc herniation likely caused her symptoms
and recommended surgery. (Tr. 504.) Dr. Badejo also referred Plaintiff to a psychiatrist
at Dr. Nguyen’s suggestion. (Tr. 504.) Plaintiff saw Dr. Nguyen again on August 24,
2007. (Tr. 477, 750.)
On September 12, 2007, Plaintiff saw Hugo Gonzalez, M.D., a psychiatrist, on
referral from Dr. Badejo. (Tr. 488–89.) Plaintiff complained that she had been depressed
for “most of [her] life.” (Tr. 488.) Dr. Gonzalez observed that Plaintiff was pleasant and
cooperative, with a restricted affect, appropriate thought content, fair-to-good insight
3

and judgment, normal memory, and a normal fund of knowledge. (Tr. 489.) He
diagnosed major depressive disorder, and assigned Plaintiff a Global Assessment of
Functioning (“GAF”) score of 65. (Tr. 489.) He also prescribed an antidepressant. (Tr.
489.)
On October 10, 2007, Plaintiff saw Clint Malcolm, APRN, who worked in Dr.
Gonzalez’s office. (Tr. 486.) Plaintiff reported that her mood was much better thanks to
her antidepressant. (Tr. 486.) Mr. Malcolm observed that Plaintiff had intact recent and
remote memory, “fine” attention and concentration, fair insight and judgment, and a
logical thought process. (Tr. 486.) Plaintiff also saw Dr. Badejo that day. (Tr. 505.) Dr.
Badejo’s examination findings were normal. (Tr. 505.) Plaintiff agreed to go forward with
discectomy and fusion procedures at the C4-C5 level. (Tr. 505.) Dr. Badejo performed
the procedure on October 16, 2007. (Tr. 497.) Afterward, Plaintiff received prescriptions
for opioid pain medication. (Tr. 496.)
During an appointment with Dr. Gonzalez on November 7, 2007, Plaintiff
reported that her recent surgery improved her pain somewhat. (Tr. 485.) She said she
was less depressed, and her anxiety was completely under control. (Tr. 485.) Plaintiff
had a “close to neutral” mood, a somewhat restricted affect, fair insight and judgment,
and a coherent thought process. (Tr. 485.) Dr. Gonzalez increased her GAF score to
70. (Tr. 485.) On the same day, Plaintiff visited Dr. Badejo and complained of mild
discomfort in the neck. (Tr. 506.) Motor and sensory exams were normal, and Plaintiff
had normal reflexes. (Tr. 506.) Dr. Badejo gave her instructions for neck exercises. (Tr.
506.) Updated cervical-spine x-rays showed that Plaintiff’s bone graft was stable. (Tr.
769.)
4

Dr. Badejo saw Plaintiff for a follow-up appointment on November 29, 2007. (Tr.
507.) Plaintiff complained of discomfort in her shoulders, but she had normal range of
motion in her cervical spine, and normal motor and sensory function. (Tr. 507.) Dr.
Badejo recommended another round of physical therapy and prescribed a non-steroidal
anti-inflammatory drug. (Tr. 507.) He also gave Plaintiff a transcutaneous-electricalnerve-stimulation (“TENS”) unit for a home trial. (Tr. 813.) Plaintiff began her second
course of physical therapy on December 6, 2007. (Tr. 529, 654, 819–22.) She
completed physical therapy on January 14, 2008. (Tr. 654, 821.)
Dr. Gonzalez saw Plaintiff again on January 23, 2008. (Tr. 547.) Plaintiff reported
that she recently had an unexpected miscarriage, and her mother passed away. (Tr.
547.) She said she was handling these losses fairly well. (Tr. 547.) Plaintiff was
pleasant and cooperative, with a depressed mood, a bright affect, and fair insight and
judgment. (Tr. 547.) Dr. Gonzalez once again assessed a GAF score of 70. (Tr. 547.)
He also prescribed a new antidepressant. (Tr. 547.)
That same day, Plaintiff saw Dr. Badejo. (Tr. 591.) Dr. Badejo noted mild
tenderness in Plaintiff’s shoulders. (Tr. 591.) Motor, sensory, and reflex exams were
normal, and Plaintiff had normal range of motion in her neck. (Tr. 591.) Dr. Badejo gave
Plaintiff a two-week supply of Valium and advised her to apply heat, do neck exercises,
and use her TENS unit. (Tr. 591.)
An x-ray of Plaintiff’s spine taken on February 12, 2008, showed normal
alignment, moderate spondylosis at the C5–C6 level, and mild change at the C6–C7
level. (Tr. 549.) During a February 13, 2008, appointment, Dr. Badejo noted that x-rays

5

showed Plaintiff’s bone graft remained in good position. (Tr. 593.) He encouraged
Plaintiff to begin neck and back exercises. (Tr. 593.)
Plaintiff saw Dr. Nguyen on March 8, 2008. (Tr. 746.) On April 4, 2008, she
complained to Dr. Badejo about tenderness in her shoulders. (Tr. 592.) Dr. Badejo
found that Plaintiff had normal cervical spine range of motion. (Tr. 592.) Sensory, motor,
and reflex examinations were normal. (Tr. 592.) He gave Plaintiff a muscle relaxant, and
advised her to apply heat if her pain worsened. (Tr. 592.)
Sarah Schaffer, Ph.D., completed a consultative psychological evaluation of
Plaintiff on February 25, 2008. (Tr. 550–54.) Plaintiff reported that she was divorced and
currently lived with her father. (Tr. 550.) She described great relationships with her
daughter and grandchildren. (Tr. 551.) Plaintiff reported episodic depression beginning
when she was a teenager. (Tr. 551.) During Dr. Schaffer’s examination, Plaintiff had
intact memory, logical thought processes, a “slightly blunted” affect, clear speech, fair
insight and judgment, and poor self-esteem. (Tr. 552-53.) Dr. Schaffer noted that
Plaintiff reported difficulty with concentration and adjusting to change. (Tr. 553.) She
assigned Plaintiff a GAF score of 65. (Tr. 553.)
Leland Lamberty, M.D., completed a consultative physical exam on March 5,
2008. (Tr. 555–58.) Plaintiff told Dr. Lamberty that she could not do any significant
physical activity following her car accident and discectomy procedure. (Tr. 555.) She
complained of pain and numbness in her neck, shoulders, and arms. (Tr. 555.) In his
examination notes, Dr. Lamberty remarked that Plaintiff “does not give the impression ...
of being in excruciating pain and seems to sit quite comfortably.” (Tr. 556.) Dr. Lamberty
noted Plaintiff had tenderness in her cervical spine, mild tenderness in her shoulders,
6

and very good range of motion in her neck. (Tr. 557.) She had intact cranial nerves, no
motor or sensory deficits, equal reflexes, and “good” range of motion in her arms and
legs. (Tr. 557.) Although she had “mild” tenderness in her back, she also had “excellent”
spine range of motion. (Tr. 557.)
Dr. Lamberty’s diagnoses included chronic neck pain and intermittent numbness
and weakness in Plaintiff’s arms. (Tr. 557.) Dr. Lamberty felt Plaintiff’s description of
severe pain to be genuine, but Plaintiff could move her head and neck slowly, tilt her
head, shake her head slightly in agreement, and move her head side-to-side without
apparent discomfort. (Tr. 558.) Dr. Lamberty felt Plaintiff could not perform strenuous
activities. (Tr. 558.) However, he felt she could perform sedentary activity that did not
require a lot of head movement. (Tr. 558.)
On March 8, 2008, Jerry Reed, M.D., an agency physician, completed a physical
assessment based on Plaintiff’s medical records. (Tr. 560–68.) Dr. Reed believed
Plaintiff could lift and carry up to ten pounds frequently and up to twenty pounds
occasionally, and could sit for up to six hours and stand or walk for up to six hours
during an eight-hour workday. (Tr. 561.) Plaintiff could frequently balance, stoop, kneel,
crouch, and crawl, and had unlimited handling, fingering, and feeling capabilities. (Tr.
562, 563.) He also felt that Plaintiff could occasionally climb ramps or stairs and would
have difficulty with repetitive overhead reaching. (Tr. 562-63.) A second agency
physician, A.R. Hohensee, M.D., assigned similar limitations in an assessment
completed on May 8, 2008. (Tr. 595–603.)
On March 9, 2008, Lee Branham, Ph.D., a state agency psychologist, completed
a mental assessment based on the record. (Tr. 569–71.) Dr. Branham felt Plaintiff would
7

have difficulty with social interaction, maintaining concentration, and adapting to
change, but would not have any marked psychological limitations. (Tr. 571.) He believed
Plaintiff could handle at least simple instructions. (Tr. 571.) Linda Schmechel, Ph.D., a
second agency psychologist, affirmed Dr. Branham’s assessment on May 7, 2008. (Tr.
594.)
Dr. Nguyen examined Plaintiff again on March 18, and June 9, 2008 (Tr. 588–89,
745), and again on September 21, 2008. (Tr. 744.) Plaintiff continued to report neck
pain. (Tr. 588, 745.)
On August 19, 2009, Jake DeNell, a physical therapist, completed a functional
evaluation at the request of Plaintiff’s attorney. (Tr. 605–19.) Mr. DeNell concluded that
Plaintiff could “work in the modified light category of work for an 8-hour workday.” (Tr.
605.) Specifically, Mr. DeNell felt Plaintiff could lift and carry fifteen pounds frequently
and up to twenty pounds occasionally; should not rotate her neck more than
occasionally; had to “work with her neck in a neutral position”; should not perform
overhead work more than occasionally; and could sit or stand for up to one hour at a
time before changing positions. (Tr. 607-08.) Mr. DeNell noted that Plaintiff had “a high
amount of perceived disability;” and he encouraged her to “return back to work within
the guidelines specified by this [exam] as soon as possible.” (Tr. 608.)
On December 17, 2008, Plaintiff saw David Rutz, M.D., “for an opinion regarding
fibromyalgia.” (Tr. 724–25.) Plaintiff told Dr. Rutz that she was diagnosed with
fibromyalgia in 2002 and continued working until April 2007, when a car accident
caused her condition to worsen. (Tr. 724.) Plaintiff said she received disability payments
from an insurer following the car accident, but the payments stopped, presumably
8

because the insurance company felt she could return to work. (Tr. 724.) During his
exam, Dr. Rutz noted that Plaintiff had significant trigger points. (Tr. 725.) His
neurological exam was “normal.” (Tr. 725.) Dr. Rutz opined that Plaintiff’s “pre-existing
fibromyalgia” had “significantly worsened as a result of a car accident of April 2007 to
the point where she can no longer be fully employed.” (Tr. 725.)
In a January 15, 2008, letter to Plaintiff’s attorney, Dr. Rutz said that Plaintiff’s
fibromyalgia would affect her cognitive function. (Tr. 722.) Dr. Rutz acknowledged Mr.
DeNell’s functional evaluation, but questioned whether Plaintiff “whould [sic] be able to
get herself out of bed to report to work.” (Tr. 722.) He also indicated that Plaintiff should
try certain fibromyalgia medications, although possible side effects included fatigue and
sedation, which “could play a part in restricting her ability to work.” (Tr. 722.)
On September 13, 2010, Plaintiff saw Bridget Pettit, a therapist, and complained
of depression. (Tr. 850–55.) Ms. Pettit found that Plaintiff was oriented and cooperative,
with a blunted affect, an anxious and depressed mood, slowed thought process,
average intelligence, reduced attention and concentration, fair judgment, and limited
insight. (Tr. 853.) Ms. Pettit diagnosed major depressive disorder and personality
disorder, and assigned Plaintiff a GAF score of 45.2 (Tr. 854–55.) Plaintiff continued to
see Ms. Pettit for weekly therapy sessions. (Tr. 856, 858, 859, 860, 892–908.) Her
treatment goals included improved sleep, coping with loneliness, and stress
management. (Tr. 860.)

2

A GAF score of 41 to 50 indicates “serious” symptoms. See Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV-TR, American Psychiatric Association, at 34
(4th ed., text rev. 2000).

9

Tamara Johnson, M.D., who worked in the same office as Ms. Pettit, saw Plaintiff
for an initial medication assessment on December 15, 2010. (Tr. 874–79.) Plaintiff told
Dr. Johnson that she used an antidepressant over the last three years, but found it
ineffective. (Tr. 878.) Plaintiff appeared oriented, and had good motor function, a
cooperative attitude, normal speech, pleasant affect, unremarkable thought content,
average intelligence, good attention and concentration, fair judgment, and “improving”
insight. (Tr. 877.) Dr. Johnson diagnosed bipolar disorder, generalized anxiety disorder,
and personality disorder, and assigned Plaintiff a GAF score of 49 (Tr. 878-79.) She
also prescribed new mood medications. (Tr. 878.)
Plaintiff saw Dr. Nguyen once again on February 8, 2011. (Tr. 872.) Plaintiff
asked for pain-medication refills and a prescription for fibromyalgia medication. (Tr.
872.) Dr. Nguyen refilled Plaintiff’s prescriptions and prescribed a fibromyalgia drug. (Tr.
872.)
II.

Testimony at the Administrative Hearing
During the May 18, 2011, hearing. (Tr. 80–100), Plaintiff said her current pain

was at eight on a ten-point scale. (Tr. 88.) She testified that her condition had worsened
since the accident and the first hearing in this case and that the pain medication did not
help as much as it used to and she was rarely pain free. (Tr. 88.) She sometimes had
numbness in both arms and muscle spasms. (Tr. 89.) Plaintiff testified that she was no
longer able to do laundry or cook for herself, and required assistance from her daughter.
(Tr. 86.) Plaintiff’s daughter also helped with shopping because it was too difficult for
Plaintiff to push the shopping cart, and Plaintiff was unable to carry heavy bags. (Tr.
95.) Plaintiff testified that she had difficulty bathing because she would become tired
10

getting in and out of the shower, and it hurt to wash her hair. (Tr. 94.) Plaintiff stated that
she was unable to do housework. (Tr. 94.) Plaintiff also testified that she could not use
her computer because she was unable to sit at a desk and work due to pain in her neck
and shoulders. (Tr. 85.) Plaintiff had difficulty driving because at times she had
problems turning her neck to check for traffic. (Tr. 85-86.) She claimed she did not like
driving because the medications made her feel “floaty.” (Tr. 93-94.) Plaintiff also testified
that she could only walk for one block, found it hard to turn her head, and could not lift
any amount of weight above her shoulders. (Tr. 45, 86, 95.)
Plaintiff added that she suffered from irregular sleep patterns and, when she was
able to sleep, would sleep for 12-16 hours and still feel tired. (Tr. 88, 91.) Further, she
seldom attended social functions due to pain, or as a result of her sleeping patterns. (Tr.
86, 89.) Plaintiff testified that she also suffered from depression and anxiety which was
treated with Cymbalta, and had crying spells that lasted more than an hour. (Tr. 91-92.)
Plaintiff complained of memory problems and fatigue caused by fibromyalgia. (Tr. 9293.)
The ALJ asked a vocational expert to consider a hypothetical claimant with the
same limitations the ALJ ultimately included in his residual-functional-capacity finding.
(Tr. 98.) The vocational expert testified that the hypothetical claimant could not perform
any of Plaintiff’s past jobs, but could perform the sedentary, unskilled jobs of weight
tester, cutter/paster, and administrative support worker. (Tr. 98-99.)
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits, a district court does not
reweigh evidence or the credibility of witnesses or revisit issues de novo. Rather, the
11

district court's role under 42 U.S.C. § 405(g) is limited to determining whether
substantial evidence in the record as a whole supports the Commissioner's decision
and, if so, to affirming that decision. Howe v. Astrue, 499 F.3d 835, 839 (8th Cir. 2007).
“Substantial evidence is less than a preponderance, but enough that a
reasonable mind might accept it as adequate to support a decision.” Finch v. Astrue,
547 F.3d 933, 935 (8th Cir. 2008). The Court must consider evidence that both detracts
from, as well as supports, the Commissioner's decision. Carlson v. Astrue, 604 F.3d
589, 592 (8th Cir. 2010). As long as substantial evidence supports the Commissioner's
decision, that decision may not be reversed merely because substantial evidence would
also support a different conclusion or because a district court would decide the case
differently. Frederickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004).
DISCUSSION
The Court concludes that substantial evidence supports the ALJ’s conclusion that
Plaintiff was not disabled under the Act. In a disability insurance benefits case, the
burden is on the claimant to prove that he or she has a disability. Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2001). Under the Social Security Act, a disability is
defined as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Additionally, the
claimant will be found to have a disability “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education and work experience, engage in any other kind
12

of substantial gainful work which exists in the national economy.” 42 U.S.C. §§
423(d)(2)(A) and 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to
guide an ALJ in determining whether an individual is disabled. First, the ALJ must
determine whether the individual is engaged in “substantial gainful activity.” If she is,
then she is not eligible for disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the
ALJ must consider step two which asks whether the individual has a “severe
impairment” that “significantly limits [the claimant's] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). If the claimant is not found to have a severe
impairment, she is not eligible for disability benefits. If the claimant is found to have a
severe impairment the ALJ proceeds to step three in which he must determine whether
the impairment meets or is equal to one determined by the Commissioner to be
conclusively disabling. If the impairment is specifically listed or is equal to a listed
impairment, the claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the
impairment is not listed or is not the equivalent of a listed impairment, the ALJ moves on
to step four which asks whether the claimant is capable of doing past relevant work. If
the claimant can still perform past work, she is not disabled. 20 C.F.R. § 404.1520(e). If
the claimant cannot perform past work, the ALJ proceeds to step five in which the ALJ
determines whether the claimant is capable of performing other work in the national
economy. In step five, the ALJ must consider the claimant's “age, education, and past
work experience.” Only if a claimant is found incapable of performing other work in the
national economy will she be found disabled. 20 C.F.R. § 404.1520(f); see also Bowen,
482 U.S. at 140–41 (explaining five-step process).
13

Plaintiff asserts several assignments of error, including that the ALJ failed to give
appropriate weight to the Plaintiff’s testimony and that of her treating physicians, and
that the ALJ erred in finding that Plaintiff was capable of work. For the reasons
discussed below, the ALJ’s conclusions are supported by substantial evidence in the
record.
I.

Credibility of Plaintiff’s Testimony
Plaintiff argues that the ALJ failed to adequately explain why he found the

Plaintiff’s testimony was not credible. The ALJ has a duty to examine a claimant’s
subjective complaints of pain, even if the objective medical evidence does not support
such complaints. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
considering subjective complaints of pain, in addition to the objective medical evidence,
the ALJ must consider the claimant's daily activities; the duration, frequency and
intensity of the pain; dosages, effectiveness and side effects of medication; and
functional restrictions. Id. “When making a determination based on these factors to
reject an individual's complaints, the ALJ must make an express credibility finding and
give his reasons for discrediting the testimony.” Shelton v. Chater, 87 F.3d 992, 995 (8th
Cir. 1996) (citing Hall v. Chater, 62 F.3d 220, 223 (8th Cir.1995)).
Plaintiff argues that the ALJ failed to address some of the Polaski factors and did
not detail his reasons for his findings with respect to the others. The Court first notes
that there is no requirement that an ALJ cite the Polaski decision or discuss every
Polaski factor. It is sufficient if Polaski factors are referenced and considered and that
an ALJ's credibility findings are adequately explained and supported. Steed v. Astrue,
524 F.3d 872, 876 (8th Cir. 2008); Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). In
14

this case, the ALJ concluded that Plaintiff’s testimony was not fully credible for several
reasons, including contrary medical opinion evidence, the lack of objective evidence to
support Plaintiff’s complaints, Plaintiff’s minimal pain treatment, and her demeanor
during the hearing. (Tr. 44–46.)
The Court concludes that the ALJ’s credibility findings with respect to Plaintiff’s
complaints of physical pain are supported by substantial evidence in the record. When
evaluating symptoms, the SSA considers “medical opinions of … treating sources and
other medical opinions.” 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). At the hearing,
Plaintiff testified that she could walk for one block, found it hard to turn her head, could
not lift any amount of weight above her shoulders, and experienced constant,
widespread pain with a severity of eight on a ten-point scale. (Tr. 45, 86, 88, 95.)
Plaintiff also complained of memory problems, and testified that her medications made
her tired and “floaty,” to the point that she could not drive safely. (Tr. 45, 92–94.)
In contrast, the ALJ specifically identified the observation of Dr. Lamberty
following a consultative examination that Plaintiff did not appear to be in excruciating
pain, and his medical opinion that Plaintiff should not perform “strenuous” activity but
seemed capable of performing sedentary activity that did not require frequent head
turning.” (Tr. 43, 556, 558.) The ALJ also noted Mr. DeNell’s physical assessment
resulting in the conclusion that Plaintiff could work “in the modified light category”
notwithstanding her impairments. (Tr. 43, 605.) Mr. DeNell opined that Plaintiff was able
to lift and carry up to twenty pounds occasionally, could sit or stand for only one hour at
a time, and should not perform overhead work more than occasionally. (Tr. 43, 607-08.)
Mr. DeNell encouraged Plaintiff to return to work “as soon as possible.” (Tr. 608.) These
15

objective medical assessments support the ALJ’s credibility determination with respect
to Plaintiff’s physical limitations.
The ALJ’s credibility finding with respect to Plaintiff’s mental limitations is also
supported by substantial evidence. For example, the ALJ relied on the evaluation of Dr.
Schaffer following a February 2008 consultative evaluation. (Tr. 44, 550-54.) Dr.
Schaffer diagnosed Plaintiff with major depressive disorder, and reported that Plaintiff
had difficulties with concentration and adjusting to change. (Tr. 44, 553.) However, Dr.
Schaeffer also observed that Plaintiff was attentive and had intact memory. (Tr. 552.)
Dr. Schaffer assigned Plaintiff a GAF score of 65, consistent with only “mild” symptoms.
See DSM-IV-TR, supra, at 34. Dr. Schaffer’s assessment contradicted the Plaintiff’s
testimony with respect to her mental impairments.
The ALJ also discussed Plaintiff’s failure to pursue specialized treatment for her
fibromyalgia. (Tr. 46.) A claimant's allegations may be discredited by evidence that the
claimant has received minimal treatment when compared to the symptoms he alleges.
See Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir.2006) (upholding credibility
determination in light of “absence of hospitalizations ..., limited treatment of symptoms,
[and] failure to diligently seek medical care”); Singh v. Apfel, 222 F.3d 448, 453 (8th
Cir.2000) (stating that allegations of disabling pain are discredited by “evidence that the
claimant has received minimal medical treatment and/or has taken only occasional pain
medications.”) The ALJ recognized that although Plaintiff testified to widespread,
constant, and pervasive pain, she never sought a pain specialist or rheumatologist for
her complaints of pain. (Tr. 44, 46.)

16

The ALJ also noted that the Plaintiff’s demeanor at the hearing also undermined
her credibility. “[An] ALJ's personal observations of the claimant's demeanor during the
hearing is completely proper in making credibility determinations.” Steed v. Astrue, 524
F.3d 872, 876 (8th Cir.2008) (holding that an ALJ “is in the best position” to assess
credibility because he is able to observe a claimant during his testimony). The ALJ
observed that although the Plaintiff testified about memory loss, she was able to recall
her symptoms and medical history without significant difficulty. (Tr. 45.)
The Court must defer to the ALJ's determination regarding the credibility of
testimony as long as it is supported by good reasons and substantial evidence. Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (citing Pelkey v. Barnhart, 433 F.3d 575, 578
(8th Cir.2006)). Having reviewed the evidence that both supports and detracts from the
ALJ’s decision, see Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir.2012) (citing Ellis v.
Barnhart, 392 F.3d 988, 993 (8th Cir.2005)), the Court concludes that the ALJ's
credibility determination with respect to Plaintiff’s testimony is supported by substantial
evidence.
II.

Residual Functional Capacity
Plaintiff also argues that the ALJ’s determination of Plaintiff’s residual functional

capacity (“RFC”) was not based on reliable evidence in the record. “RFC is defined as
the most a claimant can still do despite his or her physical or mental limitations.”
Leckenby v. Astrue, 487 F.3d 626, 631 n. 5 (8th Cir.2007). “The ALJ bears the primary
responsibility for determining a claimant's RFC and because RFC is a medical question,
some medical evidence must support the determination of the claimant's RFC.” Vossen
v. Astrue, 612 F.3d 1011, 1016 (8th Cir.2010). “The RFC must (1) give 'appropriate
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consideration to all of [the claimant's] impairments,' and (2) be based on competent
medical evidence establishing the 'physical and mental activity that the claimant can
perform in a work setting.'” Partee v, Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (quoting
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir.1996)). In determining RFC, an ALJ
should consider “[m]edical records, physician observations, and the claimant's
subjective statements about [her] capabilities.” Id. (citing Eichelberger v. Barnhart, 390
F.3d 584, 591 (8th Cir.2004)).
At the second step of the disability evaluation, the ALJ found that Plaintiff had the
severe impairments of cervical degenerative disc disease, fibromyalgia, affective mood
disorder, and anxiety disorder. (Tr. 40.) After considering all evidence in the record,
including the Plaintiff’s testimony where credible, the ALJ found that Plaintiff had the
following abilities: she could lift and carry up to twenty pounds occasionally and ten
pounds frequently; walk or stand for one hour at a time and for six total hours in an
eight-hour workday; and sit for one hour at a time and for six total hours in an eight-hour
workday. (Tr. 41-42.) The ALJ also found that Plaintiff could climb ramps and stairs, and
could occasionally stoop, crouch, kneel, crawl, or perform overhead reaching, but had to
avoid hazards. (Tr. 42.) The ALJ recognized Plaintiff’s mental impairments and chronic
pain, and accordingly limited Plaintiff to jobs that did not demand attention to detail,
close cooperation with coworkers, or more than occasional interaction with the public.
(Tr. 42.)
The ALJ concluded that Plaintiff could not return to the customer-service jobs she
performed in the past, but found that Plaintiff could perform other work existing in
significant numbers in the national economy. (Tr. 46.) The ALJ supported this finding by
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questioning a vocational expert about a hypothetical claimant with Plaintiff’s background
and residual functional capacity. (Tr. 99.) See Cox v. Astrue, 495 F.3d 614, 620 (8th Cir.
2007) (a vocational expert’s response to a complete and correctly-phrased hypothetical
provides substantial evidence for the ALJ’s step-five conclusion). The record
demonstrates that the ALJ’s hypothetical questions fully accounted for Plaintiff’s
credible pain complaints. See Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004).
The vocational expert testified that a hypothetical claimant with Plaintiff’s residual
functional capacity could perform the sedentary, unskilled jobs of weight tester,
cutter/paster, and administrative support worker. (Tr. 99.) Based on this testimony, the
ALJ concluded that Plaintiff could perform these jobs, and was therefore not disabled
under the Act. (Tr. 47.)
The record demonstrates that the ALJ properly considered the evidence and
reconciled inconsistencies in his conclusion. For example, the ALJ’s conclusion relied
on the consultative opinions of Dr. Lamberty and Dr. Schaffer, and Mr. DeNell’s
functional evaluation. As stated above, Dr. Lamberty felt that Plaintiff should be limited
to non-strenuous sedentary work, while Mr. DeNell felt Plaintiff could perform a range of
light work. (Tr. 558, 608.) The ALJ also relied on the non-examining assessments from
Dr. Reed and Dr. Hohensee. (Tr. 43.) Drs. Reed and Hohensee both felt Plaintiff could
lift up to twenty pounds occasionally, and could sit for up to six hours and stand or walk
for up to six hours in an eight-hour workday, but would have difficulty with overhead
reaching. (Tr. 561–63, 596–98.) In weighing these assessments and considering all the
evidence, the ALJ assigned greater restrictions. (Tr. 43, 608.) The ALJ accounted for
Plaintiff’s mild attention deficit and social limitations by restricting Plaintiff to jobs that did
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not require attention to detail or close cooperation with others. (Tr. 42.) The record
demonstrates that the ALJ thoughtfully considered the evidence in reaching his
conclusion.
Plaintiff argues that the ALJ should have relied on the opinions of Dr. Nguyen
and Dr. Rutz in determining the Plaintiff’s RFC. With respect to Dr. Nguyen, Plaintiff
argues that the ALJ should have requested an opinion or interrogatory from Dr. Nguyen
because the ALJ dismissed Dr. Nguyen’s records as illegible. Plaintiff cites the ALJ’s
duty to fully develop the administrative record. “A social security hearing is a nonadversarial proceeding, and the ALJ has a duty to fully develop the record.” Ellis v.
Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). “Although that duty may include recontacting a treating physician for clarification of an opinion, that duty arises only if a
crucial issue is undeveloped.” Id. Plaintiff does not allege that the record is missing any
relevant medical records. In fact, Plaintiff alleged that her medical records consistently
reflected a fibromyalgia diagnosis. (Filing No. 13 at 8; Tr. 485, 502, 547, 553, 854, 884,
982, 990, 995.) Thus, there was substantial evidence of such a diagnosis and it cannot
be said that the issue was underdeveloped. The assessments and medical records
provide substantial evidence supporting the ALJ’s RFC conclusion. Accordingly, the ALJ
was not required to contact Dr. Nguyen to develop the record.
Plaintiff also argues that ALJ failed to give controlling weight to Dr. Rutz as a
treating physician. Dr. Rutz examined Plaintiff on December 17, 2008, and his primary
diagnosis was fibromyalgia. (Tr. 724, 725.) Dr. Rutz also noted that the car accident in
April 2007 exacerbated her symptoms to the point that she could no longer be fully
employed. (Tr. 725.) In a letter dated January 15, 2009, Dr. Rutz noted a functional
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capacity examination performed by Mr. DeNell that indicated she could work in a fulltime, modified light capacity, but expressed concern as to whether Plaintiff would be
able to “get herself out of bed to report to work.” (Tr. 722.)
The ALJ did not give controlling weight to Dr. Rutz’s opinions because they were
poorly documented. (Tr. 43-44.) The Court finds this conclusion is supported by
substantial evidence in the record. According to the record, Dr. Rutz examined Plaintiff
only once. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (stating that when
considering the weight according to a treating source, ALJ considers length, nature and
extent of the treating relationship). Further, poorly documented conclusions may affect
the weight given to a treating source. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3)
(“The better an explanation a source provides for an opinion, the more weight we will
give that opinion.”). The ALJ noted that Dr. Rutz considered Plaintiff’s overall ability to
work, rather than her specific limitations. (Tr. 44.) For example, Dr. Rutz opined that
Plaintiff could not be “fully employed,” but he did not explain what specific limitations
would preclude all work. (Tr. 722.) Because the issue of overall disability is not a
medical question, the ALJ was justified in assigning little weight to Dr. Rutz’s
conclusion. See 20 C.F.R. §§ 404.1527(d), 416.927(d) (describing opinions on issues
reserved to the Commissioner). The ALJ provided substantial reasons for his decision
on the weight given to Dr. Rutz.3

3

Plaintiff also argues the ALJ failed to give controlling weight to Ms. Freeman’s vocational
assessment. Ms. Freeman’s assessment was based on the report of Dr. Rutz. (Tr. 436.) Rather than offer
an opinion on functional limitations, the assessment simply stated that a person with the limitations
described in Dr. Rutz’s opinion would be unable to find work. (Tr. 436.) Because the ALJ did not credit Dr.
Rutz’s opinion, Ms. Freeman’s assessment was unhelpful. (Tr. 46.) For the reasons discussed above with
respect to Dr. Rutz, substantial evidence supported the ALJ’s conclusion.

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Plaintiff argues that the ALJ failed to give controlling weight to Dr. Johnson,
Plaintiff’s treating psychiatrist. After administering a mood disorder questionnaire, Dr.
Johnson noted Plaintiff’s issues with anger and panic among the symptoms of her
depression. (Tr. 1068.) Dr. Johnson assigned Plaintiff a GAF score of 49, which, as
indicated above, indicates serious symptoms of impairment in social, occupational, or
school functioning. See DSM-IV-TR, supra, at 34. The ALJ stated that the GAF score of
49 indicated “that the claimant’s functioning was good and would presumably improve
when she resumed the medication treatment she had abandoned for several years.” (Tr.
45.) The ALJ’s misstatement or lack of clarity with respect to the GAF score did not
invalidate his conclusion. The ALJ specifically referenced Plaintiff’s medication, and
noted that Dr. Johnson’s assessment reflected Plaintiff’s functioning before Dr. Johnson
prescribed medication to treat her mood symptoms. (Tr. 45.) This was significant
because Plaintiff achieved GAF scores of 65 to 70 during an earlier period of treatment
with medication. (Tr. 44, 485, 489, 547.) Accordingly, the weight given to Dr. Johnson’s
conclusions were explained and supported by substantial evidence.
CONCLUSION
For the reasons discussed, the Court concludes that the Commissioner's
decision is supported by substantial evidence on the record as a whole and should be
affirmed. Accordingly,
IT IS ORDERED:
1.

The Commissioner’s decision is affirmed;

2.

The appeal is denied; and

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3.

Judgment in favor of the Defendant will be entered in a separate
document.

Dated this 4th day of February, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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