Peterson v. Wolvin

Filing 25

MEMORANDUM AND ORDER regarding Complaint 1 filed by Robert C. Peterson. The decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ROBERT C. PETERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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4:13CV3080

MEMORANDUM
AND ORDER

Plaintiff, Robert C. Peterson, brings this suit to challenge the Social
Security Commissioner’s final administrative decision denying his application for
supplemental security income (“SSI”) under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-1383f.1 For the reasons discussed below, the Commissioner’s
decision will be affirmed.
I. Procedural Background
Plaintiff is a 45-year-old man who has a limited education and work experience
as a cook’s helper and inventory handler. He applied for SSI on May 11, 2010
(Transcript (“Tr.”) (filing 11) at 55, 128-32).2 The application was denied initially on
October 18, 2010 (Tr. 60-63), and was denied upon reconsideration on February 10,
2011 (Tr. 72-75). Following these denials, Plaintiff requested an administrative
hearing (Tr. 81-83).

1

Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3),
provide for judicial review of the Commissioner’s final administrative decisions under
Title XVI.
2

The transcript (administrative record) is docketed as filing 11.

Janice E. Barnes-Williams, an administrative law judge (“ALJ”), conducted a
hearing by videoconferencing on December 13, 2011 (Tr. 23-55). Plaintiff was
represented by counsel and testified at the hearing. Testimony was also provided by
a vocational expert. The ALJ issued an unfavorable decision on February 10, 2012
(Tr. 6-22).
Using the 5-step sequential analysis prescribed by Social Security regulations,3
the ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since
May 11, 2010, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: coronary artery
disease status-post stenting, mood disorder, anxiety, bipolar, and obesity
(20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments

3

The Eighth Circuit has described the procedure as follows:

At the first step, the claimant must establish that he has not
engaged in substantial gainful activity. The second step requires that the
claimant prove he has a severe impairment that significantly limits his
physical or mental ability to perform basic work activities. If, at the third
step, the claimant shows that his impairment meets or equals a
presumptively disabling impairment listed in the regulations, the analysis
stops and the claimant is automatically found disabled and is entitled to
benefits. If the claimant cannot carry this burden, however, step four
requires that the claimant prove he lacks the [residual functional capacity
(“RFC”)] to perform his past relevant work. Finally, if the claimant
establishes that he cannot perform his past relevant work, the burden
shifts to the Commissioner at the fifth step to prove that there are other
jobs in the national economy that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006) (footnote omitted).
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in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d),
416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to: lift up to twenty pounds
occasionally and lift or carry up to ten pounds frequently; stand and/or
walk for six hours out of an eight-hour workday; sit for six hours out of
an eight-hour workday; and must be able to alternate between sitting and
standing at least every 30 minutes. The claimant can occasionally climb
ramps and stairs, but should never crawl or climb ladders, ropes, or
scaffolds, and should avoid all exposure to extreme cold, humidity,
irritants, operational control of moving machinery, unprotected heights
and hazardous machinery. Further, the claimant can perform simple
routine and repetitive tasks in a work environment free of fast-paced
production requirements involving only simple, work-related decisions
with few, if any, workplace changes. Additionally, the claimant can
have occasional interaction with the public, occasional supervision, and
he can work around co-workers with only occasional interaction with coworkers.
5. The claimant is unable to perform any past relevant work (20 CFR
416.965).
6. The claimant was . . . 42 years old, which is defined as a younger
individual age 18-49, on the date the application was filed (20 CFR
416.963).
7. The claimant has a limited education and is able to communicate in
English (20 CFR 416.964).
8. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
9. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
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numbers in the national economy that the claimant can perform (20 CFR
416.969, and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social
Security Act, since May 11, 2010, the date the application was filed (20
CFR 416.920(g)).
(Tr. 9-18).
On March 22, 2012, Plaintiff requested review of the ALJ’s decision by the
Appeals Council of the Social Security Administration (Tr. 5). The request for review
was denied on February 13, 2013 (Tr. 1-4). The ALJ’s decision thereupon became the
final decision of the Commissioner. See Van Vickle v. Astrue, 539 F.3d 825, 828 (8th
Cir. 2008). Plaintiff filed this action on April 11, 2013.
II. Issues
Plaintiff advances three main arguments. He contends the ALJ’s decision is
contrary to law and is not supported by substantial evidence on the record as a whole
because (1) “the ALJ disregarded the findings of [Dr. Ihle], the Consultative Examiner
(CE)[,] and failed to fully develop the record in this regard” (filing 17 at 5); (2) the
ALJ “disregarded a medical condition of Polyarthralgia and ... determin[ed] that [a
physician’s assistant,] Mr. Coash[,] is not an acceptable medical source” (id. at 7); and
(3) “the ALJ’s hypothetical questions to the Vocational Expert (VE) were neither
accurate nor complete” (id. at 9). The Commissioner counters that the ALJ assigned
proper weight to medical opinions, adequately considered Plaintiff’s complaints of
joint pain, and listed for the VE all of Plaintiff’s credible limitations.
III. Summary of the Evidence
Plaintiff claimed in his application or at the administrative hearing that he
became disabled on February 10, 2010, due to heart disease, high cholesterol, high
blood pressure, thyroid problems, chronic pain, bipolar disorder, anxiety, and possible
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psychosis (Tr. 26, 159). Plaintiff was 41 years old on the alleged disability onset date
(Tr. 27). He attended school through the seventh grade (Tr. 29, 160).
In June 2007, over 2 years before the alleged onset of Plaintiff’s disability, he
had a heart attack (Tr. 213). He underwent a successful angioplasty in November 2009
that resolved his chest pain (Tr. 213, 253).
On February 13, 2010, Plaintiff saw Russell Coash, a physician’s assistant at
Crete Area Medical Center (Tr. 245). Plaintiff complained of joint pain (Tr. 245).
Mr. Coash noted Plaintiff appeared well and had a normal mood and affect (Tr. 245).
Mr. Coash diagnosed Plaintiff with coronary artery disease, hypertension, and
polyarthralgia4 (Tr. 245).
On February 27, 2010, Plaintiff saw Mr. Coash for joint pain, bipolar disorder,
and anxiety (Tr. 244). Plaintiff reported no improvement in his joint pain and panic
attacks (Tr. 244). Mr. Coash noted Plaintiff appeared well; had normal gait, station,
with decreased range of motion, instability, and abnormal strength; displayed normal
affect with depressed mood; and had a regular heart rate and rhythm (Tr. 244).
Mr. Coash assessed Plaintiff with bipolar disorder, anxiety, and polyarthralgia (Tr.
244). He prescribed medication for Plaintiff’s pain and to stabilize his mood (Tr. 244).
On April 10, 2010, Plaintiff returned to Mr. Coash reporting pain in his legs and
fatigue with activity (Tr. 242). He reported the prescribed pain medication had not
helped with the pain, but Mr. Coash noted Plaintiff was not taking the maximum
dosage (Tr. 242). Plaintiff reported having no side effects from the medication (Tr.
242). Mr. Coash noted Plaintiff appeared well; displayed normal mood and affect; and
had a regular heart rate and rhythm (Tr. 242). Mr. Coash assessed Plaintiff with
arthritis in his joints and peripheral artery disease (Tr. 242).

4

Polyarthralgia refers to pain in multiple joints. Stedman’s Medical Dictionary
159, 1533 (28th ed.2006).
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On May 8, 2010, Plaintiff again saw Mr. Coash (Tr. 239). Mr. Coash noted
Plaintiff appeared well; was oriented; had an intact memory, judgment, and insight;
displayed normal mood and affect; and had a regular heart rate and rhythm (Tr. 239).
Mr. Coash assessed Plaintiff with bipolar disorder and polyarthralgia (Tr. 239). He
prescribed pain medication (Tr. 239).
On June 7, 2010, Plaintiff went to the Crete Area Medical Center emergency
room for chest pain (Tr. 261-62). Amy Vertin, M.D., noted Plaintiff’s vital signs were
stable and he had normal heart rate and rhythm (Tr. 261). An electrocardiogram
showed nothing acute (Tr. 262). X-rays showed no sign of acute changes, a borderline
enlargement of the heart, and possibly “tiny” cysts (Tr. 263, 373).
On June 15, 2010, Plaintiff saw Russell Ebke, M.D., at Crete Area Medical
Center (Tr. 237). Plaintiff said medication helped with the chest pain (Tr. 237).
Dr. Ebke noted Plaintiff had a regular heart rate and rhythm (Tr. 238). He assessed
Plaintiff with non-cardiac chest pain and recommended a follow-up visit in three
months (Tr. 238).
On July 12, 2010, Plaintiff went to the BryanLGH Heart Institute (Heart
Institute) (Tr. 454). Keith Miller, M.D., assessed Plaintiff as doing well overall, and
was pleased that his pain was reduced with antacids (Tr. 455). Dr. Miller opined
Plaintiff’s pain was due to his cholesterol medication and recommended a change in
medication (Tr. 455).
On August 26, 2010, Jerry Reed, M.D., an agency non-examining physician,
reviewed Plaintiff’s medical records and completed a residual functional capacity
(RFC) assessment (Tr. 299-307). Dr. Reed opined that Plaintiff could occasionally lift
and carry twenty pounds, frequently lift and carry ten pounds, stand or walk for six
hours in an eight-hour workday, and sit for six hours in an eight-hour workday (Tr.
300). He also opined Plaintiff had no postural or manipulative limitations, but should

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avoid concentrated exposure to extreme cold, humidity, air contaminants, hazardous
machinery, and unprotected heights (Tr. 303).
On September 14, 2010, Gail Ihle, Ph.D., conducted a psychiatric evaluation
of Plaintiff (Tr. 308-12). After interviewing Plaintiff, Dr. Ihle opined Plaintiff had
limited ability to sustain concentration and attention, but could understand, remember,
and carry out short and simple instructions; interact appropriately with co-workers and
supervisors on a superficial basis; and adapt to changes in his environment (Tr.
310-11). Dr. Ihle assigned Plaintiff a global assessment of functioning (“GAF”) score
of fifty-five and gave him a guarded prognosis (Tr. 311).5 She thought Plaintiff’s
anxiety appeared to limit his functioning significantly and that stress exacerbated his
anxiety (Tr. 311).
On October 1, 2010, Glenda Cottam, Ph.D., an agency non-examining
psychologist, completed a psychiatric review and mental RFC assessment of Plaintiff
(Tr. 315-32). Dr. Cottam noted the medical evidence suggested possible bipolar
condition, but that there was not enough evidence to support manic episodes, and he
was not suicidal, had no prior psychiatric hospitalizations, was not in counseling, and
he did not see a mental health specialist (Tr. 332). She diagnosed Plaintiff with
possible depression or bipolar disorder and anxiety (Tr. 323, 325). Dr. Cottam opined
Plaintiff was moderately limited in his ability to maintain attention and concentration
for extended periods of time; work in coordination with, or in proximity with, others;
interact with the public; accept instructions and criticism; get along with co-workers
or peers; adapt to changes in the work place; and set realistic goals or make plans (Tr.

5

The assignment of a GAF score is the last part (axis) of a mental health
practitioner’s statement of a diagnosis, and is intended to rate a patient’s current
general overall functioning. See Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed. text rev. 2000) (DSM-IV-TR). A clinician uses the GAF scale
to assess a patient’s level of psychological, social, and occupational functioning. See
id. Scores of 51 to 60 indicate “moderate” symptoms such as occasional panic attacks,
or moderate difficulty in occupational functioning. See id.
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315-16). She opined Plaintiff had no limitations, or was not significantly limited, in
any other area (Tr. 315-16).
Between July 24 and December 4, 2010, Plaintiff saw Mr. Coash for medication
checks (Tr. 340-57). On July 24, Plaintiff reported increased muscle pain, stable joint
pain, and improvement with his chest pain (Tr. 354). On September 28 and December
4, he reported still being depressed and poor motivation, but improvement with manic
episodes (Tr. 340-41, 350). On these visits, Mr. Coash altered Plaintiff’s medications
(Tr. 340-41, 350, 354). On December 4, Plaintiff reported he had stopped taking one
of his medications (Tr. 340). Mr. Coash consistently noted Plaintiff appeared well and
in no distress; oriented; and with intact memory, judgment, and insight (Tr. 340, 350).
On January 29, 2011, Plaintiff told Mr. Coash he had no changes in his bipolar
symptoms (Tr. 428).
On January 30, 2011, Mr. Coash opined in a statement that Plaintiff had
multiple medical problems that “contributed to his inability to work,” including a
heart attack in 2007, placement of a heart stent, exercise intolerance, depression, and
bipolar disorder (Tr. 463). He stated Plaintiff’s prognosis was uncertain and the
duration of his disability was indefinite (Tr. 463).
On February 7, 2011, Lee Branham, Ph.D., an agency non-examining
psychologist, conducted another psychiatric review of Plaintiff’s medical records and
affirmed Dr. Cottam’s October 1, 2010 mental RFC assessment (Tr. 359).
On February 8, 2011, Glen Knosp, M.D., an agency non-examining physician,
conducted another physical RFC assessment (Tr. 360). Dr. Knosp noted Plaintiff had
side effects from his cholesterol medication but concluded his blood pressure was well
controlled, he had no chest pain, his cardiac status was stable, and he moved about
normally (Tr. 360). Based on his review of the evidence, Dr. Knosp affirmed
Dr. Reed’s August 26, 2010 physical RFC assessment (Tr. 360).
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On March 12 and March 26, 2011, Plaintiff returned to Mr. Coash (Tr. 419-23).
On March 12, he reported no new complaints of chest or leg pain (Tr. 421). He
reported not taking his medication at the dosage prescribed (Tr. 421). Mr. Coash noted
Plaintiff appeared well, in no distress, with normal mood and affect (Tr. 422). On
March 26, Plaintiff reported he had depression and fatigue, but no suicidal ideation
(Tr. 419).
From April 29 through November 29, 2011, Plaintiff saw Dr. Ebke for
medication checks (Tr. 387- 415). On May 17, Plaintiff reported he was exercising
every day (Tr. 410). Dr. Ebke increased his mood stabilizer (Tr. 411). On June 1,
Plaintiff reported his depression was worse, but his manic symptoms had improved
(Tr. 405-06). He said he was only taking over-the-counter pain reliever (Tr. 405).
Plaintiff also reported no change in his activity level and that he continued to walk
thirty minutes a day (Tr. 405). On June 17, Plaintiff reported sleepiness due to his
psychiatric medication (Tr. 401). On November 29, he complained of depression and
headaches (Tr. 389- 90). Dr. Ebke prescribed Plainitff medication for his cholesterol
and to stabilize his mood (Tr. 391).
On July 25, 2011, Plaintiff went to the Heart Institute complaining of chest pain
(Tr. 450). Timothy Gardner, M.D, noted Plaintiff had “good exercise tolerance” and
everything appeared normal upon examination (Tr. 450). Dr. Gardner recommended
a stress test, but thought Plaintiff’s chest pain was a result of reflux disease (Tr. 451).
On August 2, 2011, Plaintiff went to the Heart Institute for a cardiac stress test
(Tr. 364, 371). Mathue Baker, M.D., noted Plaintiff displayed normal cardiac function
during the test (Tr. 364).
On September 12, 2011, Plaintiff returned to the Heart Institute (Tr. 362). Keith
Miller, M.D., reported Plaintiff’s stress test showed normal cardiac function (Tr.
362-63). Dr. Miller concluded Plaintiff was “doing fine with very likely non-cardiac

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chest discomfort” (Tr. 363). He stated Plaintiff’s current treatment regimen was
appropriate (Tr. 363).
On December 13, 2011, Plaintiff appeared for the administrating hearing in
connection with his disability application (Tr. 23-54). Plaintiff said he had pain in his
upper back, neck, hands, feet, knees, and elbows twenty-four hours a day (Tr. 31, 36).
Plaintiff said his doctor recently took him off prescription pain medication and only
allowed him to take over-the-counter pain reliever for his pain, which sometimes
helped (Tr. 32, 36, 46-47). He claimed he also had chest pain “[a]ll the time” (Tr. 37).
Plaintiff said he slept sixteen to eighteen hours a day because of his psychiatric
medications (Tr. 33-34, 44-45). He testified his medications controlled his symptoms
from his mental impairments, and that when he took his medicine he was “pretty
good” (Tr. 39-41). He stated medication stopped his symptoms of schizophrenia
“almost like magic” (Tr. 44).
Plaintiff stated he last worked in July 2007, but quit because it caused him too
much pain and his heart problems caused him to get dizzy, lightheaded, and pass out
(Tr. 30). He claimed he could stand for ten to fifteen minutes, walk 100 to 200 feet,
sit for half-an-hour to an hour, and lift thirty pounds (Tr. 31-32). He stated he could
bend at his waist (Tr. 47). Plaintiff said he no longer had a driver’s license for reasons
unrelated to his impairments (Tr. 28). He stated he grocery shopped once a month;
prepared simple, pre-made meals; and took short walks (Tr. 33, 41-42).
The ALJ asked the vocational expert to consider a hypothetical claimant of
Plaintiff’s age, education, and work experience, who could occasionally lift twenty
pounds, frequently lift or carry ten pounds, stand or walk for six hours, sit for six
hours and alternate between sitting and standing every thirty minutes (Tr. 13, 50). The
hypothetical claimant was further limited to only occasional climbing of stairs or
ramps (Tr. 50). The hypothetical claimant could never crawl; have any exposure to
extreme cold, humidity, irritants, moving and hazardous machinery; and unprotected
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heights (Tr. 50). The ALJ also limited the hypothetical claimant to simple, routine,
and repetitive tasks without fast-paced production requirements; simple work-related
decisions; and few workplace changes (Tr. 50). The hypothetical claimant to only
occasional interaction with the public, supervision, and interaction with co-workers
(Tr. 50-51). The vocational expert said the hypothetical claimant could perform the
representative jobs of storage facility rental clerk, touch-up screener, and document
preparer (Tr. 51).
IV. Discussion
The applicable standard of review is whether the Commissioner’s decision is
supported by substantial evidence on the record as a whole. See Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008). “ Substantial evidence is less than a preponderance
but is enough that a reasonable mind would find it adequate to support the
conclusion.” Id. (internal quotations and citations omitted). Evidence that both
supports and detracts from the Commissioner’s decision should be considered, but a
final administrative decision is not subject to reversal by a reviewing court merely
because some evidence in the record may support a different conclusion. See id.
Questions of law, however, are reviewed de novo. See Olson v. Apfel, 170 F.3d 822
(8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351 n. 2 (8th Cir. 1995).
A. Psychological Consultative Examination
Regarding her assessment of Plaintiff’s mental residual functional capacity, the
ALJ stated:
The claimant presented for a psychological consultative examination
with Gail Ihle, Ph.D., in September 2010. After examination, Dr. Ihle
diagnosed the claimant with anxiety and dysthymic disorder, assigned
him a GAF of 55, and opined that he can understand, remember and
carry out short and simple instructions if very brief and simple, can relate
appropriately to co-workers and supervisors on a superficial basis, and
can adapt to changes in claimant’s environment. Dr. Ihle also opined
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that the claimant has limited ability to sustain concentration and
attentions, has restrictions in activities of daily living, has difficulties in
maintaining social functioning, and his anxiety limits his functioning
significantly (Exhibit B5F). I give Dr. Ihle’s opinion partial weight
because it was rendered after an examination of the claimant and she is
a mental health specialist. However, her opinion appears to be based
primarily upon the subjective statements of the claimant and she only
examined the claimant one time.
The State agency psychological consultants opined that the claimant has
mood disorder and anxiety with mild restrictions in activities of daily
living, moderate difficulties with social functioning, moderate
difficulties in maintaining concentration, persistence and pace. The State
agency psychological consultants also opined that the claimant can
understand and remember simple instructions, has moderate challenges
with sustaining concentration and persistence, has mild to moderate
limitations with social interaction, and mild challenges with
adapting/adjusting (Exhibits B7F; B8F; and B12F). I give the opinions
of the State agency psychological consultants’ [sic] significant weight
because they were rendered after a review of the medical record and the
consultants are familiar with the definitions and evidentiary standards
used by the Agency. Further, they are consistent with the medical record,
including the examination and opinion of Dr. Ihle and the claimant’s
ability to perform simple household chores (Exhibit B5F).
(Tr. 15-16)
Plaintiff argues the ALJ did not give enough weight to Dr. Ihle’s opinions, but
the ALJ gave good reasons for giving her opinions only partial weight. First, the
opinions were based primarily upon Plaintiff’s subjective complaints, which the ALJ
had already found not credible (Tr. 15-16). See Wildman v. Astrue, 596 F.3d 959, 967
(8th Cir. 2010) (ALJ did not err when he discounted consulting psychologists’
opinions because they were based largely on the claimant’s subjective complaints);
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir.2007) (ALJ was entitled to discount an
opinion that was based largely on the claimant’s subjective complaints rather than on
objective medical evidence); Gonzales v. Barnhart, 465 F.3d 890, 896 (8th Cir. 2006)
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(ALJ could give less weight to a medical opinion because it appeared to be based
solely on the claimant’s subjective complaints). Dr. Ihle’s psychological interview of
Plaintiff consisted entirely of his recollection of past medical issues and his subjective
complaints regarding the extent and severity of his impairments (Tr. 308-11). Second,
Dr. Ihle is a consulting psychologist who saw Plaintiff only once (Tr. 15). See Charles
v. Barnhart, 375 F.3d 777, 783 (8th Cir.2004) (generally when consulting physician
examines claimant only once, his opinion is not substantial evidence).
Plaintiff also argues the ALJ should have requested additional information
from Dr. Ihle regarding the basis for her opinions.6 However, the duty to “fully and
fairly develop the record” concerning a claimant’s limitations only exists where the
professional opinions available are not sufficient to allow the ALJ to form an opinion.
See Tellez v. Barnhart, 403 F.3d 953, 956-57 (8th Cir. 2005); see also Steed v. Astrue,
524 F.3d 872, 876 (8th Cir. 2008) (“[T]he claimant’s failure to provide medical
evidence with this information should not be held against the ALJ when there is
medical evidence that supports the ALJ’s decision.”) “Ultimately, the claimant bears
the burden of proving disability and providing medical evidence as to the existence
and severity of an impairment.” Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013)
(citing Snead v. Barnhart, 360 F.3d 834, 836 (8th Cir.2004)). Past this point, “an ALJ
is permitted to issue a decision without obtaining additional medical evidence so long

6

In making this argument, Plaintiff relies upon 20 C.F.R. 404.1519p(b), which
provides: “If the report [of a consultative examination] is inadequate or incomplete,
we will contact the medical source who performed the consultative examination, give
an explanation of our evidentiary needs, and ask that the medical source furnish the
missing information or prepare a revised report.” Although the agency will normally
request as part of the consultative examiner’s report a medical source statement
regarding what a claimant can do despite his limitations, one is not required and the
lack of such a report does not make the record incomplete. See Ponder v. Astrue, No.
1:12–cv–00765–RDP, 2013 WL 1760596, *9 (N.D.Ala. Apr. 14, 2013); 20 C.F.R.
§ 404.1519n(c)(6). Because Dr. Ihle was not required to provided a functional
capacity opinion, the ALJ had no duty to recontact her for an explanation of her
findings. See id.
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as other evidence in the record provides a sufficient basis for the ALJ’s decision.” Id.
(quoting Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994)).
B. Plaintiff’s Complaint of Joint Pain; Opinion of Physician’s Assistant
The ALJ found that Plaintiff’s severe impairments include “coronary artery
disease status-post stenting, mood disorder, anxiety, bipolar, and obesity” (Tr. 11).
She also found from a review of the medical record that Plaintiff has the following
non-severe impairments: “hypertension; hypercholesterolemia; gastroesophageal
reflux disease; hypothyroidism; and a history of substance abuse” (Tr. 11 (citations
to record omitted)). The ALJ noted that “[i]n addition to the above impairments, at
the hearing, the claimant alleged that he is disabled, in part due to chronic pain” (Tr.
11). The ALJ rejected this claim, stating:
A review of the record indicates that the claimant has only been
diagnosed with polyarthralgia, which is only a symptom. Moreover, this
diagnosis was not made by an acceptable medical source; instead
the diagnosis was made by Russell Coash, P.A.C. Based on the
foregoing, other than the impairments identified above, I find that the
claimant does not have a medically determinable impairment that would
cause the pain alleged by the claimant.
(Tr. 11 (citations to record omitted)). Plaintiff objects to this finding, but it was made
in accordance with law.
Under the regulations, only medically determinable impairments can support
a finding of disability. See 20 C.F.R. § 416.905(a) (“The law defines disability as the
inability to do any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . .”). To be medically determinable, an impairment
must “be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by [the claimant’s] statement of symptoms.” 20 C.F.R.
§ 416.908. “Symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, will not be found to affect an individual’s ability to do basic work
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activities unless the individual first establishes by objective medical evidence (i.e.,
signs and laboratory findings) that he or she has a medically determinable physical or
mental impairment(s) and that the impairment(s) could reasonably be expected to
produce the alleged symptom(s).” Social Security Ruling (SSR) 96-3p, 1996 WL
374181, *9 (S.S.A. July 2, 1996); 20 C.F.R. § 416.929(b).
As a physician’s assistant, Mr. Coash is not considered an acceptable medical
source. See 20 C.F.R. § 416.913(a) (“acceptable medical sources” include licensed
physicians, licensed or certified psychologists, licensed optometrists, licensed
podiatrists, and qualified speech-language pathologists). Physicians assistants are
instead classified as “other sources.” See 20 C.F.R. § 416.913(d). “Information from
these ‘other sources’ cannot establish the existence of a medically determinable
impairment.” SSR 06-03p, 2006 WL 2329939, *2 (Aug. 9, 2006). “Instead, there must
be evidence from an ‘acceptable medical source’ for this purpose.” Id.; 20 C.F.R.
§ 416.913(a). Only “acceptable medical sources” can give medical opinions. Id.
C. Hypothetical Questions Posed to Vocational Expert
Plaintiff claims the ALJ’s hypothetical questions to the vocational expert were
not accurate or complete because they did not include any limitations for Plaintiff’s
mental impairments. In point of fact, however, the ALJ’s hypotheticals included
numerous limitations to accommodate Plaintiff’s mental impairments. Thus, she
informed the VE:
The individual would be limited to simple routine and repetitive tasks in
a work environment free of fast paced production requirements, involved
in only simple work-related decisions, with few[,] if any[,] workplace
changes. The individual may have only occasional interaction with the
public. The individual would be limited to only occasional supervision.
The individual could work around coworkers throughout the day but
with only occasional [interaction] with coworkers.

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(Tr. 50-51). These limitations reflect the opinions of the state agency non-examining
psychologists and, to some extent, the opinions of the consultative examiner, Dr. Ihle.
Plaintiff asserts that additional limitations should have been included, but “[t]he
ALJ ’s hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a whole.”
Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (quoting Lacroix v. Barnhart,
465 F.3d 881, 889 (8th Cir. 2006)). “The ALJ’s hypothetical question included all of
[Plaintiff’s] limitations found to exist by the ALJ and set forth in the ALJ’s
description of [Plaintiff’s] RFC.” Id. Because “the ALJ’s findings of [Plaintiff’s] RFC
are supported by substantial evidence, ... [t]he hypothetical question was therefore
proper, and the VE’s answer constituted substantial evidence supporting the
Commissioner’s denial of benefits.” Id. (quoting Lacroix, 465 F.3d at 889).
V. Conclusion
For the reasons explained above, I find the ALJ’s decision is supported by
substantial evidence on the record as a whole and is not contrary to law. Accordingly,
IT IS ORDERED that the decision of the Commissioner is affirmed pursuant
to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate
document.
February 5, 2014.

BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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