Fisher v. Astrue
MEMORANDUM AND ORDER 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. Ordered by Senior Judge Richard G. Kopf. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINDA NELLIE FISHER,
MICHAEL J. ASTRUE,
Commissioner of Social Security
Plaintiff, Linda Nellie Fisher, brings this suit challenging the Social Security
Commissioner’s final administrative decision denying her application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.1
For the reasons discussed below, the Commissioner’s decision will be affirmed.
Plaintiff filed her application for benefits on February 2, 2008 (Tr. 171-73).2
Her claim was denied initially (Tr. 115, 137-40) and on reconsideration (Tr. 117,
142-45). On January 5, 2010, following a hearing at which Plaintiff was represented
by counsel, an administrative law judge (“ALJ”) issued an unfavorable decision
(Tr. 124-32). On December 22, 2010, the Appeals Council of the Social Security
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of
the Commissioner’s final administrative decisions under Title II.
The transcript (“Tr.”) or administrative record was electronically filed by the
Commissioner and docketed as filing 19.
Administration denied Plaintiff’s request for review (Tr. 48-52); as a result, the ALJ’s
decision stands as the final decision of the Commissioner. This action followed.
A. The ALJ’s Findings
The ALJ evaluated Plaintiff’s claim according to the 5-step sequential analysis
prescribed by the Social Security Regulations, see 20 C.F.R. § 404.1520(a)(4),3 and
made these findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2011.
2. The claimant has not engaged in substantial gainful activity
since January 15, 2008, the alleged onset date (20 CFR 404.1571 et
3. The claimant has the following severe impairments: obesity,
diabetes mellitus, migraine headaches, and arthritis (20 CFR
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
“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).
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity as defined in 20 CFR
404.1567(a) to lift and carry 10 pounds occasionally and frequently; sit
or stand at will; and with occasional stooping, crouching, crawling, and
6. The claimant is unable to perform any past relevant work (20
7. The claimant . . . was 47 years old, which is deemed as a
younger individual age 45-49, on the alleged disability onset date (20
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. 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).
10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a)).
A claimant’s RFC represents the most she can do despite the combined effect
of her credible limitations. See 20 C.F.R. §§ 404.1545. The ALJ is responsible for
assessing a claimant’s RFC based on all the relevant evidence, including the
claimant’s description of his limitations, the medical records, and observations of the
claimant’s physicians and others. See Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th
Cir. 2000). “The RFC is used at both step four and five of the evaluation process, but
it is determined at step four, where the burden of proof rests with the claimant.” Goff
v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from January 15, 2008 through the date of this
decision (20 CFR 404.1520(g)).
B. Statement of Issues
Plaintiff argues that the ALJ failed to make a proper RFC assessment because
he (1) summarily rejected Plaintiff’s testimony and (2) did not request her treating
physician to provide an opinion as to Plaintiff’s residual functional capacity.
C. Statement of Facts
Plaintiff claimed in her application for benefits that she became disabled on
January 15, 2008 (Tr. 171). In her disability report, Plaintiff alleged disability due to
fibromyalgia,5 diabetes, scleroderma,6 and Raynaud’s disease 7 (Tr. 222). Plaintiff’s
Fibromyalgia is a common syndrome in which a person has long-term,
body-wide pain and tenderness in the joints, muscles, tendons, and other soft tissues.
Fibromyalgia has also been linked to fatigue, sleep problems, headaches, depression,
and anxiety. See United States National Library of Medicine, PubMed Health website
Scleroderma is a connective tissue disease that involves changes in the skin,
blood vessels, muscles, and internal organs. It is a type of autoimmune disorder, a
condition that occurs when the immune system mistakenly attacks and destroys
healthy body tissue. See United States National Library of Medicine, PubMed Health
website at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001465.
Raynaud’s disease is a condition in which cold temperatures or strong
emotions cause blood vessel spasms that block blood flow to the fingers, toes, ears,
and nose. See United States National Library of Medicine, PubMed Health website at
medical evidence includes records dating from September 1996 through July 2009
In August 2006, Kent Blakely, M.D., examined Plaintiff for her complaints of
pain (Tr. 531-34). He noted that he diagnosed Plaintiff with fibromyalgia during her
last appointment four or five years earlier (Tr. 531). Plaintiff reported working
full-time as a certified nurse’s assistant (Tr. 531). Upon examination, Plaintiff had a
steady gait and normal pulses, strength, sensation, and range of motion (Tr. 532-33).
She had tenderness in her shoulder, hip, and knees (Tr. 532). She had 16 of 18 tender
points present for fibromyalgia (Tr. 533). Her mental status examination was normal
(Tr. 533). Dr. Blakely assessed morbid obesity, depression, type-2 diabetes mellitus,
and fibromyalgia (Tr. 533). He prescribed medication and instructed Plaintiff to return
in six months (Tr. 533-34). He also told Plaintiff that she needed to exercise regularly
In February 2007, Plaintiff told Lorinda Reece, M.D., her treating physician,
that she was “thinking about trying to get permanent disability” for her fibromyalgia
(Tr. 329). Plaintiff indicated she was dissatisfied with Dr. Blakely and was interested
in finding another rheumatologist. Plaintiff reported working 5 to 7 days per week
and experienced pain while working (Tr. 329). She also complained of numbness in
her hands (Tr. 329). Plaintiff’s physical examination was normal except for some
tenderness in the epigastric area (Tr. 329). Dr. Reece assessed hypercholesteralemia,
fibromyalgia, polymenorrhea, and type-2 diabetes (Tr. 329). Dr. Reece advised
Plaintiff “that she would need to see a different physician besides myself to qualify
for the disability” (Tr. 329).
Plaintiff returned to her doctor’s office a few weeks later with complaints of
vertigo related to a cold virus (Tr. 416). Terry Gourley, PA-C, told her to take
over-the-counter Sudafed (Tr. 408). In April 2007, Plaintiff saw Mr. Gourley for
an upper respiratory infection (Tr. 321, 331) Plaintiff also saw Dr. Reece in April
2007 to have her medications refilled (Tr. 281). Plaintiff was assessed with diarrhea,
fibromyalgia, type-2 diabetes, and hypothyroidism (Tr. 281).
In August 2007, Plaintiff complained to Dr. Reece of acute neck pain that began
the day before (Tr. 453). She also complained of low back pain that began three days
earlier (Tr. 453). Her physical examination was unremarkable; she had normal muscle
strength and tone, no motor and sensory changes, and no remarkable neurological
findings (Tr. 454). The assessment was acute lymphadenitis and lumbago with
radiation to posterior thighs bilaterally (Tr. 454). Dr. Reece told Plaintiff to stretch
and to take over-the-counter pain relievers as needed (Tr. 454).
Plaintiff hurt her thigh and back putting up Christmas lights at the end of
November 2007 (Tr. 408). She had point tenderness in three different places, but Mr.
Gourley noted that there was no abrasion or contusion and that Plaintiff could walk
on her own power (Tr. 408).
One week later, Plaintiff complained to Mr. Gourley of cough and congestion
(Tr. 407). She also told him that she was trying to get disability for fibromyalgia and
had been having more pain since her fall the week before (Tr. 407). Her physical
examination revealed an upper respiratory infection (Tr. 407). Mr. Gourley and
Plaintiff talked about Plaintiff’s recurring pain and Mr. Gourley suggested she get
assistance to help with medical bills (Tr. 407). In January and February 2008,
Mr. Gourley prescribed medication for Plaintiff’s upper respiratory infection and
laryngitis (Tr. 406, 418).
In March 2008, after Plaintiff had applied for Social Security disability
insurance benefits, Leland Lamberty, M.D., performed a physical consultative
examination (Tr. 419-23). Plaintiff told Dr. Lamberty that she had been diagnosed
with several autoimmune disorders about 10 to 15 years earlier (Tr. 419). Her other
health problems included hypothyroidism, migraine headaches, hypertension, GERD,
non-insulin-dependent diabetes mellitus, and obstructive sleep apnea (Tr. 419). Her
weight was 252 pounds and her blood pressure was 128/84 (Tr. 420). Dr. Lamberty
observed that Plaintiff appeared to be in discomfort, especially when she changed
positions (Tr. 421). He noted that she moved very slowly during the examination (Tr.
421). Her vision was 20/30 in her right eye and 20/25 in her left eye with glasses (Tr.
421). She had minimal tenderness over the mid-spine, but significant tenderness in
multiple areas of her back (Tr. 422). She had good range of motion in her arms and
legs and her pedal pulses were excellent (Tr. 422). She had no motor or sensory
deficits (Tr. 422). Dr. Lamberty concluded that Plaintiff “genuinely seems to be in
pain most of the time” (Tr. 422). He stated that Plaintiff would not be able to do
moderate or strenuous work and that lifting and significant twisting or squatting
would be very difficult for her (Tr. 422). He opined that more sedentary type work
would appear to be within her grasp, provided that she frequently changed positions
and continued on her medications (Tr. 423).
Also in March 2008, Rebecca Schroeder, Ph.D., performed a psychological
consultative examination of Plaintiff (Tr. 538-46). Testing indicated that Plaintiff had
average scores in auditory, visual, and memory function, except a just-below average
score in working memory (Tr. 543). Dr. Schroeder noted that Plaintiff appeared to
struggle most on tasks requiring focus and concentration (Tr. 543). Overall, her
memory function appeared to be good (Tr. 544). Plaintiff’s mental status examination
revealed that she was well-oriented, alert, and well-spoken, with well-developed
communication skills, a good mood, and a broad affect (Tr. 544). Plaintiff stated that
she was applying for disability benefits because of her physical pain (Tr. 544). Dr.
Schroeder concluded that Plaintiff did not have any restrictions in her activities of
daily living related to her mental health functioning (Tr. 545). She stated that Plaintiff
exhibited well-developed social skills (Tr. 545). She noted that Plaintiff appeared to
have occasional problems with concentration and attention, but that she seemed to be
able to understand, remember, and carry out short and simple instructions under
ordinary supervision (Tr. 545). She diagnosed adjustment disorder with depressed
mood and assessed a global assessment of functioning (GAF) score of 75, with the
highest score of 82 during the past year (Tr. 546).8
In April 2008, Plaintiff complained to Dr. Reece of vaginal itching for the past
month, blurred vision for the past month, and cramps and aching in her legs (Tr.
458-59). Dr. Reece also noted that Plaintiff’s diabetes was uncontrolled (Tr. 459). Dr.
Reece discussed risk factor modifications with Plaintiff, and advised her to exercise
regularly, lose weight, eat a low fat and low cholesterol diet, monitor and control her
diabetes, and control her blood pressure (Tr. 459).
Plaintiff returned to Dr. Reece in June 2008 for help with her diabetes (Tr. 455).
She told Dr. Reece that she had been diagnosed with diabetes 10 years earlier at a
clinic (Tr. 455). She was not checking her blood sugars and her blood sugar was
poorly controlled (Tr. 455). She was fairly compliant with her medication (Tr. 455).
Dr. Reece stressed the importance of risk factor modifications (Tr. 456). Plaintiff
stated that she could not afford her medication and was given samples (Tr. 456).
In September and October 2008, Jeffrey Brittan, M.D., treated Plaintiff 5 times
for complaints of bronchitis (Tr. 493-97). In November 2008, she went to Dr. Brittan
for a recheck of her bronchitis and complained of abdominal pain (Tr. 492). Her
gallbladder was removed two days later (Tr. 465). She recovered well and 10 days
A GAF is the clinician’s judgment of the individual’s overall level of
functioning, not including impairments due to physical or environmental limitations.
See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed. revision 2000) (DSMIV- TR). A GAF of 71 to 80 indicates that
if symptoms are present, they are transient and expectable reactions to psycho-social
stressors; no more than slight impairment in social, occupational, or school
functioning. See DSM-IV-TR, 34. A GAF of 81 to 90 indicates absent or minimal
symptoms, good functioning in all areas, interested and involved in a wide range of
activities, socially effective, generally satisfied with life, no more than everyday
problems or concerns. See DSM-IV-TR, 34.
later was released to resume normal activities, including work (Tr. 465, 489, 510).
Plaintiff told Dr. Brittan in January 2009 that although her pain never went away, she
otherwise felt good (Tr. 488).
In April and June 2009, Dr. Brittan gave Plaintiff samples of medication
because she was having a hard time keeping up with her medications for financial
reasons (Tr. 485-86). Plaintiff returned in June 2009, complaining of high blood
pressure and swelling in her feet and legs (Tr. 484). Dr. Brittan continued her
medications and followed up with her two weeks later (Tr. 483-84).
At the end of June 2009, Plaintiff saw another physician in Dr. Brittan’s office
for diabetes education as her blood sugars had been elevated (Tr. 482). He talked with
her about her food intake and told her to keep a food diary (Tr. 482). Plaintiff returned
weekly during July 2009, bringing in her food diary (Tr. 479-81). Her blood sugars
were reduced to 150 (Tr. 480). She lost five pounds (Tr. 481).
In December 2009, Dr. Brittan completed a letter for Plaintiff’s application for
disability (Tr. 536). He noted that she suffered from multiple medical problems,
including diabetes with secondary complications of peripheral neuropathy, loss of
vision, and some renal insufficiency (Tr. 536). He opined that the combination of all
of these problems, most specifically the peripheral neuropathy from the diabetes,
made it impossible for her to work (Tr. 536).
At her administrative hearing on December 4, 2009, Plaintiff testified that she
had problems with diabetes, fibromyalgia, lupus, Raynaud’s syndrome, scleroderma,
sleep apnea, acid reflux, migraines, and problems with memory (Tr. 92). She weighed
over 250 pounds (Tr. 86). She rated her pain at 3 to 5 on a 10-point scale in the
morning, but stated that the pain worsened throughout the day (Tr. 99). She would
have days that were worse than others, but she was always in pain, as none of her
medications relieved her pain completely (Tr. 95, 99-100). She stated that a warm bath
helped, but she had to be careful with the heat because her lupus flared up and she
could not use ice because then she had trouble with her Raynaud’s disease (Tr. 95).
In describing her daily life, Plaintiff stated she lived with her husband in a
house and did not have any children (Tr. 87). She could drive, but her husband did
most of the driving (Tr. 87). She could care for her personal needs, although her
husband occasionally helped her with her hair, and helped her with her socks and
shoes every day (Tr. 87). Plaintiff testified that she performed some household chores,
with her husband’s help (Tr. 88). She would clean up around the house, taking breaks
after 10 to 15 minutes of work (Tr. 88). She spent most of her day sitting or laying
down and watched about 4 hours of television each day (Tr. 88-89, 101). She testified
that she would visit friends and family (Tr. 89). She also worked for 8 hours per night,
2 nights per week at an assisted living facility (Tr. 90). Plaintiff testified that she did
not go to the doctor frequently unless she was really sick, because she did not have
money to pay her doctor’s bill (Tr. 93). In describing her physical capabilities,
Plaintiff stated that she could sit for 20 to 30 minutes, stand for 15 to 20 minutes, walk
around the block, and lift 10 to 15 pounds (Tr. 96-97). Plaintiff stated she had
problems picking up small objects from a table, turning a key, and opening a can of
pop (Tr. 97-98).
Jose Chaparro, a vocational expert, testified in response to a hypothetical
question posed by the ALJ, outlining Plaintiff’s age, education, work experience, and
work-related limitations (Tr. 106- 10). The hypothetical individual could lift 10
pounds occasionally and frequently, could sit or stand at will, and could occasionally
stoop, crawl, and kneel (Tr. 107). Considering the exertional and non-exertional
limitations described by the ALJ, the vocational expert testified that the hypothetical
person could perform representative occupations of nut sorter, production worker, and
call out operator (Tr. 108-09).
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 n2 (8th Cir. 1995).
A. Plaintiff’s Credibility
“The credibility of a claimant’s subjective testimony is primarily for the ALJ
to decide, not the courts.” Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003). To
analyze a claimant’s subjective complaints, the ALJ considers the entire record
including the medical records, third party and the claimant’s statements, and factors
such as: 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 20 C.F.R. § 404.1529; Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
Plaintiff argues that the ALJ made a conclusory statement of her credibility,
contrary to the requirements of Social Security Rulings 96-7p and 96-8p.9 However,
Social Security Ruling 96-7p states in part: “[I]t is not sufficient for the
adjudicator to make a single, conclusory statement that ‘the individual’s allegations
have been considered’ or that ‘the allegations are (or are not) credible.’ It is also not
enough for the adjudicator simply to recite the factors that are described in the
analysis of the ALJ’s decision as a whole indicates that the ALJ articulated the
inconsistencies on which he relied in discrediting Plaintiff’s subjective complaints,
including the inconsistency between her allegations and the objective medical
evidence, her daily activities, her minimal and conservative treatment, and her work
activity (Tr. 126-30). See 20 C.F.R. § 404.1529.
First, the ALJ noted that there were very few objective findings to support
Plaintiff’s complaints (Tr. 126-28). The absence of an objective medical basis to
support the degree of Plaintiff’s subjective complaints is an important factor in
evaluating the credibility of the claimant’s testimony and complaints. See 20 C.F.R.
§ 404.1529(c); Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010). Despite
Plaintiff’s complaints of pain, her August 2006 physical examination showed that she
had a steady gait and normal pulses, strength, sensation, and range of motion (Tr.
532). In February 2007, when Plaintiff told Dr. Reece that she was “thinking about
trying to get permanent disability” for her fibromyalgia, she was working 5 to 7 days
per week and her physical examination was normal except for some tenderness in the
epigastric area (Tr. 329). In August 2007, despite her complaints of pain, Plaintiff’s
physical examination was unremarkable; she had normal muscle strength and tone, no
motor and sensory changes, and no remarkable neurological findings (Tr. 454).
regulations for evaluating symptoms. The determination or decision must contain
specific reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual's statements
and the reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *1 (Soc. Sec.
Admin. July 2, 1996). Social Security Ruling 96-8p provides, among things, that
“[t]he RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p,
1996 WL 374184, at *7 (Soc.Sec.Admin. July 2, 1996).
During her physical consultative examination in March 2008, Plaintiff moved
slowly and appeared to be in discomfort but she had good range of motion of both
upper and lower extremities (Tr. 419-22). Her pedal pulses were excellent (Tr. 422).
She had no motor or sensory deficits (Tr. 422). Dr. Lamberty opined that more
sedentary type work would appear to be within her grasp, provided that she frequently
changed positions and continued on her medications (Tr. 423). Dr. Brittan’s records
do not reflect any severe or limiting physical findings (Tr. 479-88). Although the ALJ
did not discredit Plaintiff solely based on the absence of objective findings to support
her assertions, the lack of objective findings was an important consideration for him
in evaluating Plaintiff’s credibility.
The ALJ also considered that Plaintiff’s treatment was conservative in nature
(Tr. 126-27). Her office visits were for treatment for acute illnesses (Tr. 126-27, 321,
331, 407-08, 416, 453-54, 458-59, 492, 494-97) or medication refills (Tr. 126-27, 281,
455-56, 479-88). The Eighth Circuit has consistently held that allegations of a
disabling impairment may be properly discounted because of inconsistencies such as
minimal or conservative medical treatment. See, e.g., Edwards v. Barnhart, 314 F.3d
964, 967 (8th Cir. 2003) (“[T]he ALJ concluded, and we agree, that if her pain was
as severe as she alleges, [the plaintiff] would have sought regular medical
treatment.”). The ALJ properly considered that Plaintiff’s minimal and conservative
medical treatment diminished her credibility regarding her allegation that her
impairments prevented her from performing all work.
Plaintiff testified that she did not visit the doctor often because she owes on her
bill and has no way to pay it (Tr. 93). Although economic justifications for the lack
of treatment can be relevant to a disability determination, Plaintiff offered no
testimony or other evidence that she had been denied further treatment or access to
prescription medicine on account of financial constraints. See Clark v. Shalala, 28
F.3d 828, 831 n.4 (8th Cir. 1994) (“[T]he claimant offered no testimony or other
evidence that she had been denied further treatment or access to prescription pain
medicine on account of financial constraints.”); Goff v. Barnhart, 421 F.3d 785, 793
(8th Cir. 2005) (“[T]here is no evidence [the claimant] was ever denied medical
treatment due to financial reasons.”). In fact, she was given samples of medication
(Tr. 129, 456, 485-86) and received medication assistance from the Pfizer Connection
to Care program (Tr. 498).
The ALJ determined that Plaintiff’s depression was medically determinable, but
not severe (Tr. 127). He included in his decision his rationale for reaching that
conclusion (Tr. 127). See 20 C.F.R. § 404.1520a. In rating the degree of Plaintiff’s
functional limitations under the “paragraph B” criteria, the ALJ determined Plaintiff
had no limitation in activities of daily living; no limitation in social functioning; mild
limitation in concentration, persistence, or pace; and no episodes of decompensation
that have been of extended duration (Tr. 127). The psychological consultative
examiner opined that Plaintiff did not have any restrictions in her activities of daily
living or social functioning, but had problems with focus and concentration (Tr. 127,
545). The ALJ’s findings were supported by the state agency psychological consultant
who also found that Plaintiff had only mild limitations in concentration, persistence,
or pace (Tr. 437).
In evaluating her activities of daily living, the ALJ considered Plaintiff’s
testimony at the administrative hearing that she cared for most of her personal
grooming, performed household chores with her husband’s help, watched television,
and worked part time (Tr. 87-90, 127). Activities that are inconsistent with a
claimant’s assertion of disability reflect negatively upon that claimant’s credibility.
See Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001). The ALJ also discussed
Plaintiff’s part-time work (Tr. 126-27). See Harris v. Barnhart, 356 F.3d 926, 930
(8th Cir. 2004) (holding it was reasonable for the ALJ to note that the claimant’s part
time work was inconsistent with her claim of disabling pain).
The ALJ also considered that when Plaintiff had poor blood sugar control in
June 2008, she was not checking her blood sugars (Tr. 129, 456). “A failure to follow
a recommended course of treatment also weighs against a claimant’s credibility.”
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005). Plaintiff was instructed to
exercise regularly, lose weight, monitor and control her diabetes, control her blood
pressure, and take aspirin daily (Tr. 129, 456, 459). When Plaintiff changed her
medications and diligently kept her food diary, her blood sugars were significantly
reduced (Tr. 129, 480). “An impairment which can be controlled by treatment or
medication is not considered disabling.” Medhaug v. Astrue, 578 F.3d 805, 813 (8th
The ALJ articulated the inconsistencies upon which he relied in discrediting
Plaintiff’s testimony regarding her subjective complaints (Tr. 128-30). Substantial
evidence on the record as a whole supports the ALJ’s credibility determination. See
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (“We will not substitute
our opinion for that of the ALJ, who is in a better position to assess credibility.”).
B. Medical Opinions
An ALJ must give a treating physician’s opinion controlling weight if it is well
supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the record. Brace v. Astrue, 578
F.3d 882, 885 (8th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)). Dr. Brittan’s
opinion that “[t]he combination of all of [Plaintiff’s] impairments makes it impossible
for her to work” is not entitled to controlling weight, however, because it goes to the
ultimate question of whether Plaintiff is disabled, which is an issue reserved to the
Commissioner. See 20 C.F.R. § 404.1527(e); SSR 96-5p, 1996 WL 374183 (Soc. Sec.
Admin. July 2, 1996); House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A treating
physician’s opinion that a claimant is disabled or cannot be gainfully employed gets
no deference because it invades the province of the Commissioner to make the
ultimate disability determination.”).
The ALJ recognized Dr. Brittan’s opinion was conclusory and not entitled to
controlling weight, but still evaluated the opinion as required by the regulations and
found it was not persuasive (Tr. 130). See SSR 96-5p, 1996 WL 374183, at *2
(“[A]djudicators must always carefully consider medical source opinions about any
issue, including opinions about issues that are reserved to the Commissioner.)”
Medical source opinions which are not entitled to controlling weight are evaluated by
considering all of the factors in 20 C.F.R. § 404.1527(d) (e.g., nature and extent of
medical source’s relationship with claimant, supportability, consistency with other
evidence, and specialization).
Dr. Brittan treated Plaintiff in the fall 2008 for bronchitis (Tr. 494-97). He
rechecked her diabetes from April 2009 through July 2009 (Tr. 479-88). His medical
records do not contain any objective findings to support a claim that Plaintiff could
not work. There is one record of swelling in her feet and legs that Dr. Brittan treated
with medication (Tr. 484). Other physical examinations show that Plaintiff had normal
muscle strength and tone and normal gait (Tr. 422, 454, 532). Although Dr. Brittan
stated that Plaintiff could not work primarily due to her peripheral neuropathy, there
are no records that Plaintiff demonstrated any limitations from her neuropathy. Her
examinations showed normal pedal pulses and sensation in all extremities (Tr. 422,
454, 532). Her gait and ability to walk were not affected (Tr. 408, 422, 532). Dr.
Brittan’s opinion that it was impossible for Plaintiff to work is inconsistent with the
objective medical evidence of record.
None of Plaintiff’s other physicians opined that she was disabled. Dr. Reece
told Plaintiff that she would need to see a different physician to qualify for disability
(Tr. 329). Dr. Lamberty opined that Plaintiff could perform sedentary work with
frequent position changes (Tr. 423). The doctor who removed Plaintiff’s gall bladder
released her to resume normal activities, including work (Tr. 465, 489, 510). Rather
than limiting her activity, Plaintiff’s doctors encouraged her to move more and
exercise (Tr. 454, 534). Dr. Blakely told Plaintiff that she would not feel better unless
she participated in regular exercise (Tr. 534). Dr. Reece also told Plaintiff to exercise
regularly as part of her risk factor modifications (Tr. 456, 459).
The ALJ found that although Dr. Brittan was Plaintiff’s treating physician, the
opinion of the consultative examiner was most consistent with the sparse medical
evidence and was entitled to significant weight (Tr. 130). An ALJ is warranted in
discrediting some of the treating physician’s opinions which are inconsistent with, and
contradicted by, other evidence in the record. See Raney v. Barnhart, 396 F.3d 1007,
1010 (8th Cir. 2005) (treatment notes assessing claimant as “improved” and “fair”
were inconsistent with treating physician’s RFC form and claimant’s claim of
disability); see also Owen v. Astrue, 551 F.3d 792, 799 (8th Cir. 2008) (“[The
plaintiff’s activities of daily living do not reflect the physical limitations found by [his
treating physician].”). As Dr. Brittan’s opinion was conclusory, cited no medical
evidence, and was inconsistent with the medical evidence of record, the ALJ properly
gave little weight to his opinion (Tr. 130). See Wildman v. Astrue, 596 F.3d 959, 964
(8th Cir. 2010) (ALJ properly discounted physician’s opinion which was conclusory,
consisted of three checklist forms, cited no medical evidence, and provided little to
Plaintiff argues that the ALJ had a duty to contact Dr. Brittan and have him
complete the appropriate RFC criteria forms. This is not the law. 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
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (holding that the ALJ does not
need to seek additional clarifying statements from a treating physician unless a crucial
issue is undeveloped). Here, the records were clear, legible, and complete, and used
acceptable clinical and laboratory techniques. The ALJ found that medical evidence,
including additional medical opinions on Plaintiff’s ability to work, combined with
the rest of the credible evidence of record, was sufficient to formulate Plaintiff’s RFC
(Tr. 128). I find no basis for overturning the ALJ’s assessment.
Accordingly, I conclude that the ALJ’s decision is supported by substantial
evidence on the record as a whole and is not contrary to law.
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
February 28, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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