Piper v. Astrue

Filing 24

MEMORANDUM OPINION - A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
DAVID T. PIPER,

)
)
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

8:12CV69

MEMORANDUM OPINION

This matter is before the Court for review pursuant to
42 U.S.C. § 405(g) of the decision of defendant Commissioner of
the Social Security Administration (“SSA”) denying social
security disability benefits (“SSD benefits”) to plaintiff David
T. Piper.

Upon review, the Court finds the SSA’s decision is

supported by substantial evidence and should be affirmed.
I. BACKGROUND AND PROCEDURAL HISTORY
Mr. Piper was born in 1947.

Mr. Piper graduated from

high school and served in the United States military from
November 1966 to June 1969.
college-level course work.
has four adult children.

Mr. Piper has completed 125 hours of
He has been married since 1973 and

Mr. Piper worked for many years as a

carpenter and concrete quality control inspector, and more
recently as a telemarketer, insurance agent, parking garage
attendant, and test administrator (Tr. 243-50).

Mr. Piper alleges he has been disabled since June 15,
2006, due to a history of diabetes, obesity, sleep apnea, and
degenerative disc disease.1

As of September 2006, Mr. Piper was

5’10” tall and weighed 250 pounds.
On June 15, 2007, Mr. Piper filed for SSD benefits (Tr.
129-31).

In connection with the application, Mr. Piper completed

a Daily Activities and Symptoms Report dated July 7, 2007 (Tr.
189-93).

Mr. Piper stated that his symptoms included “memory

loss, Diabetes, pain in feet, Dimming eyesight (sometimes), high
blood sugars, Hard to see sometimes, Loss of concentration, Poor
Circulation, fatigue, Body aches, feet stabbed with needles,
Heart pounds” (Tr. 191).

Mr. Piper stated that his symptoms are

located “All over,” that he has his symptoms “every day,” and
that they last “All Day” (Id.).

Similarly, Mr. Piper’s wife

completed a Supplemental Information Form dated July 4, 2007 (Tr.
195-97).
During a routine medication follow-up doctor visit on
August 20, 2007, Mr. Piper told the nurse that his pain score
that day was one on a scale of zero to ten (Tr. 574).

1

When asked

Mr. Piper amended his onset date from March 2002 to June
2006 at the hearing in front of the administrative law judge (Tr.
30-31). During the period relevant to this appeal, Mr. Piper had
numerous medical examinations relating to his impairments, as
well as other unrelated medical issues. These examinations are
well documented in the record, in the ALJ’s decision, and in the
briefs submitted by both parties. The Court will call attention
only to those medical records that have particular significance
for the appeal at hand.
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if this is different from the pain he has every day, Mr. Piper
answered “No” (Id.).
On September 10, 2007, Mr. Piper underwent examination
by Roderick Harley, M.D., a state agency reviewing physician, who
completed a Physical Residual Functional Capacity (“RFC”)
Assessment (Tr. 507-16).

Dr. Harley listed Mr. Piper’s diagnoses

as history sleep apnea, type 2 diabetes, obesity, and mild
degenerative disc disease.

Dr. Harley opined that Mr. Piper’s

back impairments limited him to lift or carry no more than fifty
pounds occasionally and twenty-five pounds frequently, stand or
walk for a total of six hours in an eight-hour workday, and sit
for a total of about six hours in an eight-hour workday.

Dr.

Harley stated that no communicative limitations, such as hearing
or speaking, were established.
After summarizing Mr. Piper’s medical visits, Dr.
Harley concluded, “The claimant’s allegations are felt to be only
partially credible as on the initial he indicated he could not
‘sit very long’ but on his ADL form indicated he had no problems
sitting and could sit for 4 hours” (Tr. 514).

“His allegations

of not being able to lift anything heavy and can’t be on his feet
very long are vague. . . . [H]e was installing cabinets in his
house and on the ADL form indicated he worked around the house
doing repair projects” (Id.).

“The exams on multiple occasions

do not document any specific neuro problems or problems with the

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claimant’s vision, back or feet . . . . [T]he claimant is capable
of work activity during the period in question as per the above
RFC” (Id.).
On September 11, 2007, the SSA denied Mr. Piper’s
initial SSD benefits claim (Tr. 66).

On October 10, 2007, Mr.

Piper requested reconsideration of the SSA’s decision (Tr. 77).
On January 28, 2008, another state physician, Jerry Reed, M.D.,
reviewed Mr. Piper’s claim and affirmed Dr. Harley’s RFC of
September 10, 2007 (Tr. 641).

On January 29, 2008, Mr. Piper’s

reconsideration claim was also denied (Tr. 68).
On February 29, 2008, Charles K. Lee, M.D., reviewed
Mr. Piper’s case file and agreed with all aspects of the earlier
RFC (Tr. 645-46).
On March 1, 2008, Judy K. Martin, M.D., analyzed Mr.
Piper’s case file with regard to mental health issues, issuing a
one-page statement where she concluded, “Allegations of a mental
condition are partially credible in that the MDI's of Dysthymic
Disorder and Major Depression are supported in 2002.
reflects a positive response to treatment” (Tr. 647).

MER
“The

claimant has not followed up in treatment with no ongoing
signs/symptoms reflected in the MER.

ADL’s do not reflect severe

limitations from a mental impairment.

No further development is

necessary” (Id.).

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On March 3, 2008, Mr. Piper applied for an appellate
hearing with an administrative law judge (“ALJ”) for his claim
(Tr. 90).
On July 21, 2008, Mr. Piper’s internist, Joel Armitage,
M.D., completed a Multiple Impairment Questionnaire (Ex. 11F, Tr.
665-72 (“11F”)).

Therein, Dr. Armitage stated that he sees Mr.

Piper every three to six months for treatment of chronic disease,
namely diabetes mellitus, insulin dependent; hyperlipidemia; and
hypertension (Tr. 665).

Dr. Armitage stated that Mr. Piper’s

primary symptoms were “[b]ilateral needle pain in feet suggestive
of diabetes neuropathy,” that the pain occurred daily,
precipitated by activity, and that the range of pain was four to
five on a ten-point scale (Tr. 666-67).

Dr. Armitage stated that

Mr. Piper’s level of fatigue was one to two on a ten-point scale
(Tr. 667).
Dr. Armitage stated that Mr. Piper could sit for four
to five hours and stand/walk for three to four hours in an eighthour day, and that it would be necessary or medically recommended
that Mr. Piper not sit continuously in a work setting, such that
Mr. Piper would get up and move around every thirty to sixty
minutes and sit again after a few minutes (Tr. 667-68).

Dr.

Armitage stated that it was “unclear” how much weight Mr. Piper
could lift or carry (Tr. 668).

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When asked if Mr. Piper’s symptoms would likely
increase if he were placed in a competitive work environment, Dr.
Armitage answered “Yes” (Tr. 669).

Dr. Armitage indicated that

Mr. Piper’s experience of pain, fatigue or other symptoms seldom
or periodically are severe enough to interfere with attention and
concentration (Tr. 670).

Dr. Armitage indicated that emotional

factors do not contribute to Mr. Piper’s symptoms and functional
limitations (Id.).

Dr. Armitage wrote that it was unclear

whether Mr. Piper would need to take unscheduled breaks to rest
at unpredictable intervals during the workday and that it was
unclear how often Mr. Piper would be absent from work due to his
impairments (Tr. 670-71).

Dr. Armitage indicated that the

earliest date to which the description of Mr. Piper’s symptoms
and limitations applies is “now” (Tr. 671).
On August 5, 2009, David M. Conklin reviewed Mr.
Piper’s case file and affirmed the earlier RFCs dated September
10, 2007, and January 28, 2008 (Tr. 238).

Mr. Conklin stated,

“The claimant is still capable of performing past work as they
described it” (Id.).

Also on August 5, 2009, Michael Perll,

M.D., reviewed Mr. Piper’s case file and affirmed as written the
earlier RFCs dated September 10, 2007, and January 28, 2008 (Tr.
793).
On November 23, 2009, Dr. Armitage completed another
questionnaire, this time a Diabetes Mellitus Impairment

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Questionnaire (Ex. 19F, Tr. 805-10 (“19F”)).

Therein, Dr.

Armitage stated that he sees Mr. Piper every three months for
treatment of diabetes mellitus, which Dr. Armitage states is a
chronic illness, likely to develop complications over time, and
unlikely to improve” (Tr. 805).

Dr. Armitage stated that Mr.

Piper’s primary symptoms were “chronic pain in both legs, loss of
sensation and loss of position, [unreadable], fatigue, malaise,
[and] depression” (Tr. 806).

Dr. Armitage stated that Mr. Piper

had suspected peripheral vascular disease and peripheral
neuropathy (Tr. 807).
Dr. Armitage stated that Mr. Piper could sit for two
hours and stand/walk for two hours in an eight-hour day, that it
would be necessary or medically recommended that Mr. Piper not
sit continuously in a work setting, and that it would be
necessary or medically recommended that Mr. Piper not stand/walk
continuously in a work setting (Tr. 808).

Dr. Armitage stated

that Mr. Piper could lift and carry up to ten pounds occasionally
but could never lift or carry more than ten pounds (Tr. 808-09).
Dr. Armitage indicated that emotional factors, namely
depression, do contribute to Mr. Piper’s symptoms and functional
limitations (Tr. 809).

Dr. Armitage stated that Mr. Piper’s

medical conditions limit the amount of stress that Mr. Piper can
tolerate (Id.).

Dr. Armitage indicated that Mr. Piper’s

experience of pain, fatigue or other symptoms frequently or

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constantly are severe enough to interfere with attention and
concentration (Id.).

Dr. Armitage wrote that Mr. Piper would be

absent from work due to his impairments or treatment frequently,
more than three times a month (Tr. 809-10).

Dr. Armitage

indicated that the earliest date to which the description of Mr.
Piper’s symptoms and limitations applies is “years ago” (Tr.
810).
At Mr. Piper’s request, an adminstrative hearing took
place on January 21, 2010, in Omaha, Nebraska, before ALJ Jan E.
Dutton to review Mr. Piper’s SSD-benefits claim (Tr. 27-65).
When asked by the ALJ why he could no longer work as a
telemarketer, Mr. Piper testified, “While I was working at
telemarketing I developed a ringing in my ears.
listen to those phones anymore” (Tr. 39-40).

I just couldn’t

When asked if he

wore a headset to mask the noise, Mr. Piper replied, “Oh yes, but
they control the volume.
the building” (Tr. 40).

They turned it up and down someplace in
Mr. Piper stated that he did not submit

employment applications to other telemarketers who might operate
differently (Id.).

Mr. Piper testified that while his boss

allowed him to stand up and sit down in his booth, he believed
that other telemarketers would not allow this flexibility (Tr.
41).
Mr. Piper stated that a “car place” declined to hire
him because Mr. Piper told the potential employer of his

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diabetes, and the employer had had another employee with diabetes
that didn’t work out (Tr. 42).

When asked by the ALJ why

diabetes would affect his ability to work at the car place,

Mr.

Piper answered, “Tell you the truth, as far as the other person,
I don’t know, but I felt I could handle the job, but I just
couldn’t get it” (Id.).

When the ALJ asked Mr. Piper what had

gotten worse, or what had changed, such that he could no longer
work, Mr. Piper replied,
That’s a good question. I think
things have gotten worse. At what
point, I can’t really say because
it’s just kind of gradual. A lot
of things in my record I – I didn’t
tell the doctor because I didn’t
want to be one of the complainers.
I just hate doctor’s appointments.
So, I just tell the minimum, and
try to get out of there, and I
suppose I did myself a disservice
there because I should have told
them everything, but I didn’t. I
was trying to get a job. That’s
what I wanted to do.
(Tr. 43).

Mr. Piper stated that he could lift twenty-five pounds

more than once but not more than twice, and that he would feel
comfortable lifting ten or fifteen pounds without any worry (Tr.
56-57).
When questioned by his representative, Mr. Piper stated
that he was fired from his part-time job as a test administrator
because “[t]hey said I couldn’t handle the job” (Tr. 43).

When

asked to elaborate, Mr. Piper stated, “Well, I couldn’t – my

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point of attention span didn’t work out, and on the phone I just
– that ringing in my ears, it drove me crazy” (Id.).
Mr. Piper’s representative stated that Mr. Piper had
been complaining of foot pain since August 2007.

When asked how

his pain compared to that time, Mr. Piper replied, “Well, it’s a
little worse now” (Tr. 45).

Mr. Piper stated that he has to lie

down for about an hour, typically twice a day (Tr. 47-48).

Mr.

Piper stated that he has bad days about once a week, where he is
not able to leave the house (Tr. 49).

Mr. Piper stated that

because of his diabetes, he experiences pain all over his body
sometimes, always present, at a two on a scale of one to ten (Tr.
51).

Mr. Piper states that he has to take breaks from his

woodworking hobby quite often due to fatigue, and that he lasts
for only up to one hour (Tr. 56).
Next, vocational expert Deborah Determan testified at
Mr. Piper’s hearing.

The ALJ posed the following hypothetical to

the vocational expert:
The first question I have is for
light exertional work. If the
claimant could occasionally lift or
carry twenty pounds; frequently
lift or carry ten pounds; stand,
sit, walk six hours in an eighthour day; could occasionally do
postural activities, climb,
balance, stoop, kneel, crouch,
crawl; should avoid concentrated
exposure to cold and hazards.
I’m not finding a severe mental
impairment, and I’m not finding a
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hearing impairment. With that
functional capacity could he return
to any of his past work?
(Tr. 59).

Based on the hypothetical, the vocational expert

opined that such an individual “could return to the past work as
a parking lot attendant, and as a telemarketer” (Id.).

The

vocational expert testified that in the state of Nebraska, there
exist approximately 200 jobs as parking lot attendant and 5,500
jobs as telemarketer (Id.).
The ALJ then posed a second hypothetical to the
vocational expert at the hearing:

“Based on the opinion of Dr.

Arm[i]tage at 11F, do you think the claimant could return to the
two jobs you’ve identified?” (Tr. 61).

Based on Exhibit 11F, the

vocational expert answered that “within this set of restrictions,
a person could perform the past work as a parking lot attendant
or as a telemarketer” (Tr. 61-62).
Next, the ALJ then posed a third hypothetical to the
vocational expert:

“Now, if you would, please look at 19F, and

the pertinent part of this would be Dr. Arm[i]tage apparently
changing his position, opinion about maximum workday and reducing
it down to about half-time.

Would that in and of itself preclude

competitive full-time employment?” (Tr. 62).

Based on Exhibit

19F, the vocational expert answered, “Yes, if a person’s not able
to work on a full-time basis, then that’s going to preclude them
from competitive employment” (Id.).

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Finally, the ALJ posed a fourth question to the
vocational expert: “[I]f the claimant’s testimony is considered
to be credible do you think that he could do his past jobs?

The

two that we’re referring to, telemarketer and parking lot?”
(Id.).

The vocational expert answered, “[B]ased on the

claimant’s testimony, a person would be precluded from the past
work” because “[h]e’s indicated that on his bad days that he’s
essentially unable to leave his home, and he estimated that that
would occur one time a week.

That alone, and by itself is going

to preclude competitive employment” (Id.).

In addition, lying

down for an hour two times a day “is not going to be consistent
with normal work breaks.

So, that also is going to preclude

competitive employment” (Tr. 62-63).

“Also, the characteristics

that he, the characteristics of his capabilities with respect to
sitting, standing, and walking is as he described them, would be
at a level of less than sedentary.

So, that also would preclude

competitive employment” (Tr. 63).
At the end of the hearing, the ALJ allowed Mr. Piper’s
representative to contact Dr. Armitage to request an explanation
for the differences between the impairment questionnaires dated
July 21, 2008 (11F), and November 23, 2009 (19F), because the ALJ
stated that she “can’t really figure out what would have caused
him to change his opinion during that timeframe . . .” (Tr. 64).
The ALJ suggested that Mr. Piper’s representative determine

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whether Dr. Armitage might want “to defend some date when he
thinks [Mr. Piper’s] condition worsened” (Id.).
On February 1, 2010, Mr. Piper’s representative
submitted to the ALJ a statement by Dr. Armitage dated January
29, 2010, regarding the differences between his answers on the
two previous questionnaires describing Mr. Piper’s limitations
(Tr. 877).

Dr. Armitage’s statement, in its entirety, reads
To whom it may concern regarding
David Piper:
I received a request, regarding
Mr. Piper’s request to obtain
social security disability, to
clarify two conflicting letters
assessing his status from a health
standpoint. The first letter was
written with the patient having not
divulged much of his difficulties
he was having. The second letter
was written with this in mind.
Specifically, his neuropathy,
inattention, and depression have
likely led to his inability to
maintain jobs in the past and
continue to be an issue for him.
His neuropathy will not improve.
He regularly uses his CPAP at home
for OSA and though his attention
and daytime alertness have improved
he still has daytime somnolence.
His depression is in the early
stages of treatment and as of yet I
cannot say how easy it will be to
treat, though this is a significant
roadblock for this patient as
regards to getting and maintaining
a job in my opinion based on the
history provided from the patient
and his spouse. In conclusion, the
main reason for the disparity of
the two letters was I was provided
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vastly more information prior to
writing the second letter in
regards to his health. I hope this
meets your satisfaction as an
explanation. I am happy to discuss
further or elucidate concerns as I
am able.
Joel Armitage, M.D.
(Tr. 878).
On May 19, 2010, the ALJ issued an unfavorable opinion
affirming the denial of Mr. Piper’s SSD-benefits claim (Tr. 1826).

The ALJ evaluated Mr. Piper’s claim under the SSA’s five-

step sequential process.

See 20 C.F.R. § 404.1520(a).

At step

one, the ALJ found that Mr. Piper had not engaged in substantial
gainful activity since June 15, 2006, the alleged onset date of
his disability.
At step two, the ALJ found that Mr. Piper’s
impairments, diabetes mellitus, sleep apnea, obesity, and
degenerative disc disease, were severe.

But the ALJ also

concluded, “The claimant’s medically determinable mental
impairments of a depressive disorder; posttraumatic stress
disorder; hypertension; and mild hearing loss, considered singly
and in combination, do not cause more than minimal limitation in
the claimant’s ability to perform basic mental work activities
and are therefore ‘nonsevere’ in this context” (Tr. 22).

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At step three, the ALJ found that Mr. Piper’s
impairments did not meet one of the listed impairments found in
20 C.F.R. pt. 404, subpt. P, app. 1.
Next, the ALJ determined that Mr. Piper had a residual
functional capacity “to perform light work as defined in 20 CFR
404.1567(b) except that he can stoop, kneel, crouch, crawl, and
bend only occasionally; he can use his hands for frequent, not
constant handling, fingering, and feeling.

He should avoid

concentrated exposure to extreme cold and to hazards such as
unprotected heights” (Tr. 22).

While the ALJ found Mr. Piper’s

“medically determinable impairments could reasonably be expected
to cause at least some of the symptoms he alleged,” nevertheless,
the ALJ found that Mr. Piper’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are
not fully credible” (Tr. 23).
The ALJ also discounted the opinion of Dr. Armitage,
which the ALJ characterized as “inconsistent with other
substantial evidence in the record and with the doctor’s clinical
notes,” and “also at odds with the claimant’s self-assessment”
(Tr. 25).

The ALJ stated that Dr. Armitage “was doing little

more than recording the claimant’s description of his
limitations” (Id.).
Finally, the ALJ also discounted the statement of Mr.
Piper’s wife, “which is essentially a recitation of the

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claimant’s symptoms and is not given controlling weight for the
same reason’s [sic] her husband’s alleged disability is not found
to be fully credible to the extent of total disability” (Id.).
The ALJ noted, “Five DDS medical doctors/evaluators
reviewed this claim and none felt the claimant was limited to
more than medium work and that his mental condition was
nonsevere” (Tr. 25 (citations omitted)).

“While the undersigned

has given him the benefits of doubt and used a light residual
functional capacity (because claimant asserts he cannot lift more
than 25 pounds), the general analysis of DDS is given controlling
weight” (Tr. 25).

“In sum, the above residual functional

capacity assessment is supported by the persuasive medical
evidence in the record” (Tr. 26).
At step four, the ALJ found that Mr. Piper was able to
perform his past relevant work as a parking lot attendant and as
a telemarketer, work that “does not require the performance of
work related activities precluded by the claimant’s residual
functional capacity” (Tr. 26).

The ALJ then had no need to

determine at step five whether Mr. Piper was able to do any other
work aside from his past relevant work.

In summary, the ALJ

found that Mr. Piper “has not been under a disability, as defined
in the Social Security Act, from June 15, 2006, through the date
of this decision” (Id.).

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On June 8, 2010, Mr. Piper requested review of the
ALJ’s decision by the SSA’s Appeals Council (Tr. 13).

On

December 20, 2011, the Appeals Council declined Mr. Piper’s
request for review; thus, the ALJ’s decision is now the final
decision of the Commissioner (Tr. 3).

Mr. Piper timely filed a

complaint with the United States District Court for the District
of Nebraska on February 16, 2012 (Filing No. 1).
II.
A.

DISCUSSION

Standard of Review.
When reviewing an ALJ’s decision, the Court “must

determine ‘whether the ALJ’s decision complies with the relevant
legal requirements and is supported by substantial evidence in
the record as a whole.’”

Martise v. Astrue, 641 F.3d 909, 920

(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).

“Substantial evidence” is:

relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
contradictory.
Id. at 920-21.
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“‘If, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and
one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’”

Partee v. Astrue, 638 F.3d

860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785,
789 (8th Cir. 2005)).

The Court may not reverse the ALJ’s

decision “merely because [the Court] would have come to a
different conclusion.”

Teague v. Astrue, 638 F.3d 611, 614 (8th

Cir. 2011)(citation omitted).
proving disability.”
B.

The claimant “bears the burden of

Id. at 615.

Substantial Evidence Exists Supporting the ALJ’s Decision.
1.

Dr. Armitage’s Opinions.

Mr. Piper’s first

assignment of error is that the ALJ impermissibly discounted the
opinion of Dr. Armitage.

Generally, a treating physician’s

opinion is entitled to substantial weight.

Martise, 641 F.3d at

925 (quoting Brown v. Atrue, 611 F.3d 941, 951-52 (8th Cir.
2010)).

Nevertheless, an ALJ “may justifiably discount a

treating physician’s opinion when that opinion ‘is inconsistent
with the physician’s clinical treatment notes.’”

Id. (quoting

Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009)).
In this case, the ALJ found that Dr. Armitage’s second
opinion supporting Mr. Piper’s disability (19F), which was given
in November 2009 after Mr. Piper filed for SSD benefits, was
contrary to his previous treatment notes regarding Mr. Piper.
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As

outlined by the ALJ, “For example, the doctor indicated that the
claimant experienced muscle weakness; swelling in his lower
extremities; a loss of manual dexterity; and difficulty walking.
(Exhibit 19F/2)[.]

However, the doctor never recorded or

discussed any of those symptoms in any of his clinical notes”
(Tr. 25).
The Court notes that Mr. Piper claims that diabetic
neuropathy is his “primary problem” (Filing No. 16, at 13).
the record reads differently.

Yet

On August 20, 2007, the day Mr.

Piper first saw Dr. Armitage, Mr. Piper placed his pain at one on
a zero to ten scale, and when asked, “Is this different from the
pain you have every day?” answered “NO” (Tr. 783-84).

On

February 4, 2008, Mr. Piper placed his pain at one on a zero to
ten scale, and when asked, “Is this different from the pain you
have every day?” answered “NO” (Tr. 762).

On June 23, 2008, Mr.

Piper placed his pain at zero on a zero to ten scale, and when
asked, “Is this different from the pain you have every day?”
answered “NO” (Tr. 751).

On December 22, 2008, Dr. Armitage

reported that Mr. Piper was in “[n]o acute distress” and that
“[s]ince the last visit he did start taking gabapentin with great
relief of his foot pain” (Tr. 737).

In fact, while Dr. Armitage

stated in 19F that Mr. Piper’s neuropathy “will not improve,”
during Mr. Piper’s most recent visit preceding this statement,
Dr. Armitage made no finding regarding neuropathic pain and

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stated that Mr. Piper exhibited “[n]o acute distress” (Tr. 905).
These ongoing positive reviews of Mr. Piper’s condition contained
in the medical record are inconsistent with Dr. Armitage’s second
disability opinion given in 2009 (19F).
Moreover, in the candid words of Mr. Piper’s
representative, Dr. Armitage’s second disability opinion given in
2009 showed a “drastic increase in terms of the doctor’s
restrictions” (Tr. 877).

Dr. Armitage attempted to explain the

“drastic increase” in his letter quoted at p. 13-14 above.

Dr.

Armitage states that he now has “vastly more information” with
which to assess Mr. Piper, but does not clearly state the nature
or source of this information.

Dr. Armitage merely states, “The

first letter was written with the patient having not divulged
much of his difficulties he was having.
written with this in mind” (Tr. 878).

The second letter was
The Court agrees with the

SSA’s assessment that “this only supports the ALJ’s conclusion
that Dr. Armitage relied heavily on Plaintiff’s subjective
complaints when writing the opinion (Tr. 25).

As the ALJ found

Plaintiff’s complaints to be not entirely credible [see below],
an opinion based on those complaints is similarly unsupported”
(Filing No. 23, at 16).
Even taking into consideration the fact that Mr. Piper
testified that he was reticent about discussing his medical
issues with his providers because he did not want to appear to be

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a “complainer,” the record simply does not provide substantial
evidence for the dramatic difference in the opinions of Dr.
Armitage.

Moreover, in his statement of January 29, 2010, the

Court finds that Dr. Armitage did not provide an adequate reason
as to why his second disability opinion is so different from both
the first disability opinion and from his treatment notes.
Because Dr. Armitage’s second disability opinion was inexplicably
contrary to both his treatment notes and his first disability
opinion, the ALJ was entitled to discount Dr. Armitage’s second
disability opinion.
Mr. Piper also complains that the ALJ did not
adequately weigh Dr. Armitage’s opinions using the factors listed
in 20 C.F.R. § 404.1527(c).

But the Court notes that the ALJ

specifically cited that regulation, stating that she “also
considered opinion evidence in accordance with [its]
requirements” (Tr. 23).

The Court finds that she effectively

addressed each of the factors so listed.2
2.

RFC Assessment.

Mr. Piper states that the ALJ did

not have proper support for the RFC that she adopted in this

2

The Court notes in particular that while Mr. Piper argues
that Dr. Armitage was Mr. Piper’s “long-time treating physician”
(Filing No. 16, at 11), Dr. Armitage only began seeing Mr. Piper
on August 20, 2007 (Tr. 533), and, by his own admission, did not
know much about Mr. Piper’s difficulties after almost a year of
treatment, such that he had to drastically change his July 2008
opinion.
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case.

The ALJ determined that Mr. Piper had an RFC “to perform

light work as defined in 20 CFR 404.1567(b) except that he can
stoop, kneel, crouch, crawl, and bend only occasionally; he can
use his hands for frequent, not constant handling, fingering, and
feeling.

He should avoid concentrated exposure to extreme cold

and to hazards such as unprotected heights” (Tr. 22).

Mr. Piper

states that “the ALJ’s RFC that Mr. Piper can perform
substantially the full range of light work is not supported by
any evidence.

She simply stated that she adopted the

non-examining physician’s opinions that Mr. Piper could perform
medium work and reduced their findings to a light RFC” (Filing
No. 16, at 12).

Mr. Piper states that the ALJ “failed to cite to

any evidence that would support making such an inference, when
all the other evidence found Mr. Piper could not perform even
sedentary work capabilities, which requires sitting at least six
hours a day” (Id.).
Yet the only evidence that supports this conclusion is
Dr. Armitage’s second disablility opinion, which the ALJ
reasonably discredited, and Mr. Piper’s testimony, which the ALJ
found to lack credibility (see below).

On the contrary, the

Court agrees with the SSA’s assessment that the ALJ “properly
formulated the RFC based on her evaluation of the evidence of
[the] record as a whole” (Filing No. 23, at 20).

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The Court finds

that the ALJ’s assessment of Mr. Piper’s RFC is supported by
substantial evidence.
3.

Consideration of Obesity.

Mr. Piper argues that

the ALJ did not properly consider Mr. Piper’s obesity.
Specifically, Mr. Piper states that the ALJ did not consider SSR
02-1p, which requires that obesity must be considered at step
four.

Yet at step two, the ALJ specifically stated that Mr.

Piper’s obesity severely impaired him (Tr. 20).

In addition, in

formulating Mr. Piper’s RFC, the ALJ cited Mr. Piper’s weight
twice, thus placing his weight into consideration (Tr. 21).
While it is true that the ALJ did not specifically reference SSR
02-1p, the Court finds that she effectively addressed Mr. Piper’s
obesity.
4.

Evaluation of Mr. Piper’s Credibility.

An ALJ’s

credibility findings must be supported by substantial evidence.
Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992).

“In

analyzing a claimant’s subjective complaints of pain, an ALJ must
examine: ‘(1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects
of medication; [and] (5) functional restrictions.’”

Dunahoo v.

Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (quoting Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).

If the ALJ gives

a “good” reason for not crediting the claimant that is supported
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by the record, the Court will defer to the ALJ’s judgment.
Robinson, 956 F.2d at 841.
Here, the ALJ found that “the claimant’s medically
determinable impairments could reasonably be expected to cause at
least some of the symptoms he alleged.

However, the claimant’s

statements concerning the intensity, persistence and limiting
effects of these symptoms are not fully credible” (Tr 23).

The

ALJ stated that there were “several factors that detract from the
claimant’s credibility” (Id.).

First, the ALJ noted that Mr.

Piper “told a medical source on May 23, 2002 that he did not feel
that any of the experiences he had while in the Army in Viet Nam
were distressing and that he had not ‘reexperienced’ any of the
incidents” (Id.).

Yet the day before, while Mr. Piper “sought an

evaluation at the VA facility for the purpose of establishing
that he had post-traumatic stress disorder,” he had given a
detailed account of being under fire in Viet Nam and the problems
this creates for him, such as “intrusive recollections” and
nightmares (Tr. 23-24).
As another example, the ALJ noted that Mr. Piper
testified that he could not return to his job as a telemarketer
because of the ringing in his ears.

But as the ALJ states, “in a

written statement in June of 2009, the claimant said that his
hearing was not affected by his medical conditions” (Tr. 24).
The Court notes that on other occasions not cited by the ALJ, Mr.

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Piper also denied being bothered by tinnitus, or ringing in his
ears.

For example, a primary care outpatient note dated December

22, 2008, and signed by Dr. Armitage states, “No hearing, vision
problems” (Tr. 737).

In addition, an audiology consult note

dated July 22, 2009, states, “Discussed amplification options for
veteran’s high frequency hearing loss and the possibility of this
helping with his tinnitus.

Veteran is not interested at this

time, as he does not perceive his tinnitus as bothersome” (Tr.
722).
The ALJ also noted that while Mr. Piper testified that
he had problems with sitting and standing, an April 2007
treatment note states that “the claimant reported that he was
‘doing well’ and that he was ‘staying active by working on his
house’ and was installing cabinets.

The only complaint recorded

that day concerned his left knee pain that improved when he used
Tylenol” (Tr. 24).

The Court notes that in a diabetes care

management note dated October 10, 2006, three months after Mr.
Piper’s alleged onset date, Clare Korolchuk, RN, CDE, noted,
“[Mr. Piper] has also been very physically active putting a new
roof on his house” (Tr. 300).
The Court notes that as described above in the
discussion concerning Dr. Armitage, on several occasions Mr.
Piper placed his pain at a level of zero or one on a zero to tenpoint scale and stated that this was not different from the pain

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he felt every day.

Yet in his statement to the SSA, Mr. Piper

avowed that his symptoms are located “All over,” that he has his
symptoms “every day,” and that they last “All Day” (Tr. 191).
Based on the foregoing, the Court finds that when
viewing the evidence in the record as a whole, Mr. Piper’s
statements concerning the intensity, persistence, and limiting
effects of his symptoms are inconsistent and not fully credible
and that the ALJ’s credibility assessment is supported by
substantial evidence.
5.

Vocational Expert Testimony.

Mr. Piper’s final

assignment of error is that the ALJ improperly relied on the
testimony given by the vocational expert at the hearing.

Mr.

Piper states that since the ALJ’s “RFC assessment is not
supported by substantial evidence . . . , the VE’s response to
that RFC in the hypothetical question cannot be relied upon”
(Filing No. 16, at 17-18).

The Court has already found that the

ALJ’s assessment of Mr. Piper’s RFC is supported by substantial
evidence.

Likewise, after reviewing the record as a whole, the

Court finds that substantial evidence supports the ALJ’s reliance
on the opinion of the vocational expert and the ALJ’s conclusion
that Mr. Piper could return to his past work as a parking lot
attendant and as a telemarketer.

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III.

CONCLUSION

Substantial evidence in the record as a whole supports
the ALJ’s determination that Mr. Piper was not disabled, and the
ALJ’s decision complies with the relevant law.

The SSA’s denial

of Mr. Piper’s SSD benefits claim will be affirmed.

A separate

order will be entered in accordance with this memorandum opinion.
DATED this 23rd day of January, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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