Baker v. Colvin

Filing 22

ORDER - The Commissioner's decision is affirmed, the appeal is denied, and judgment in favor of the defendant will be entered in a separate document. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISARICT COURT
FOR THE DISARICT OF NEBRASKA

ROBERT RAY BAKER,
Plaintiff,

8:14CV13

vs.
ORDER
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.
This is an action for judicial review of a final decision of the Commissioner of the
Social Security Administration (the Commissioner).1 Robert Ray Baker (Baker) appeals
the Commissioner’s decision denying Baker’s application for disability insurance
benefits (DIB) under Title II of the Social Security Act (Act), 42 U.S.C. §§ 401, et seq.
and Supplemental Security Income (SSI) benefits under Title XVI of the Act, 42 U.S.C.
§§ 1381, et seq.
Baker applied for benefits on March 30, 2009, alleging disability beginning
October 31, 2008 (AR. 335-341, 342-344). The Social Security Administration (SSA)
denied benefits initially and again upon reconsideration (AR. 148, 150, 151, 153, 177180, 185-188, 189-192). Baker appealed the denials to an administrative law judge
(ALJ), who held administrative hearings on March 3, 2011, February 15, 2012, October
25, 2012, and November 8, 2012 (AR. 31-70, 71-83, 84-113, 114-147). On February 5,
2013, the ALJ determined Baker was not disabled within the meaning of the Act2 (AR.
10-30). The Appeals Council denied Baker’s request for review on November 23, 2013
(AR. 1-7). Baker now seeks judicial review of the ALJ’s determination as it represents
the final decision of the Commissioner. See 42 U.S.C. § 405(g).
Baker filed a brief (Filing No. 19) in support of this administrative appeal. The
Commissioner filed the administrative record (AR.) (Filing Nos. 13, 14) and a brief
(Filing No. 20) in opposition to Baker’s appeal for benefits. Baker filed a reply (Filing
1

The parties consented to jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). See Filing No. 18.
2
The Appeals Council reversed and remanded an earlier decision by the ALJ (TR. 171-174).

No. 21) in opposition to the Commissioner’s brief. Baker appeals the Commissioner’s
decision, asking the decision be reversed and benefits awarded because: (1) the ALJ
failed to give sufficient weight to Baker’s treating sources; (2) the ALJ failed to give
weight to the Department of Veteran Affairs (VA) disability determination; (3) the ALJ
committed reversible error in finding Baker’s tinnitus was not severe; (4) the ALJ failed
to properly evaluate Baker’s pain when making an assessment of his Residual
Functional Capacity (RFC); (5) the ALJ failed to properly account for Baker’s obesity; (6)
the ALJ’s hypothetical question to a Vocational Expert (VE) was inaccurate and
incomplete; and (7) the ALJ erred in finding Baker’s testimony unreliable. See Filing
No. 19 - Brief p. 9-22.

FACTUAL BACKGROUND
A.

Medical History
Baker previously worked as a material handler, circuit board supervisor,

wholesale sales representative, crane operator, and janitorial services supervisor (AR.
50, 485, 486). While working as a material handler, Baker injured his back lifting floor
joists on October 30, 2008 (AR. 492). At the time of his application for benefits, Baker
was fifty-two years old and fifty-six years old when the ALJ rendered his decision (AR.
23, 148, 335, 342).
The day after Baker injured his back, he sought treatment and was examined by
Dennis O’Leary, M.D. (Dr. O’Leary) (AR. 492). Dr. O’Leary diagnosed a lumbar strain
and prescribed ibuprofen, in addition to suggesting Baker specifically avoid lifting
weights over 15 pounds; bending more than 10 times per hour; pushing or pulling over
25 pounds of force; and squatting, kneeling, and sitting for any prolonged amount of
time (AR. 492-493). Dr. O’Leary also advised Baker limit the use of his back in general
(AR. 492-493). Dr. O’Leary saw Baker three days later and reported Baker’s symptoms
had improved (AR. 494). Dr. O’Leary also noted Baker was able to work “modified
activity with acceptable tolerance.” (AR. 494).
On November 1, 2008, Baker visited a VA emergency room, complaining of low
back pain stemming from his on-the-job injury (AR. 546-547). Scott Menolascino, M.D.
(Dr. Menolascino), diagnosed a muscle strain or sprain and recommended Baker avoid
2

work for at least one week (AR. 546). Once Baker returned to work, Dr. Menolascino
advised he restrict any lifting to objects less than 10 to 15 pounds (AR. 546). Dr.
Menolascino instructed Baker to implement daily ice therapy and take ibuprofen and
muscle relaxers as needed (AR. 546).
On November 14, 2008, Baker visited a VA facility for care related to his back
injury and left forearm pain (AR. 540). A physician’s assistant assessed a back strain,
and recommended an x-ray, physical therapy (PT), Acetaminophen, and Tramadol (AR.
541). X-rays revealed mild degenerative disc disease (AR. 550-551).
On November 19, 2008, Baker began PT through the VA in an attempt to
improve the pain he experienced in his back and left elbow (AR. 535-538). Baker took
muscle relaxers and participated in exercises, traction, and stretching (AR. 514-522,
528-29, 532-535). Though Baker reported treatment was helpful, it did not eliminate his
pain (AR. 514-522, 528-529, 532-535).
Baker sought care again at the VA for treatment of his back pain on December
16, 2008 (AR. 524-525). Dale Davis, a physician’s assistant (PA Davis) who treated
Baker, reported Baker’s uncontrolled conditions included hypertension, obesity,
hyperlipidemia, and degenerative disc disease (AR. 525).

During this visit, Baker

declined to enter a program to help him lose weight (AR. 525).
Baker completed his PT at the VA on February 23, 2009; after a total of
seventeen sessions (AR. 511-512). Julie Ortman, DPT, his physical therapist, noted
Baker was still experiencing some pain but believed it was manageable with therapeutic
exercises and traction (AR. 512).
On March 11, 2009, Baker returned to the VA for care related to his back pain
(AR. 508). PA Davis treated Baker during his visit and categorized Baker’s obesity,
hyperlipidemia, and lower back strain as uncontrolled (AR. 509).

PA Davis again

recommended weight loss programs, which Baker declined (AR. 509).

PA Davis

determined all Baker’s other health issues were controlled (AR. 508-509).
Glen Knosp, M.D. (Dr. Knosp), a state-agency physician, reviewed Baker’s
medical records on April 29, 2009, and completed an RFC Assessment (AR. 556-563).
Based on the records, Dr. Knosp believed Baker could lift, push, or pull 20 pounds
frequently and 10 pounds occasionally; stand or walk six hours in an eight-hour
3

workday; and sit for six hours during the same period (AR. 557). Dr. Knosp suggested
Baker limit stooping and crouching and avoid concentrated exposure to extreme cold or
heat and pulmonary irritants (AR. 558, 560). Dr. Knosp also noted Baker’s November
11, 2008, x-rays exhibited no evidence of an acute injury and he believed Baker’s
credibility was “partial” based on his records and corresponding pain reports (AR. 563).
On July 10, 2009, Jerry Reed, M.D. (Dr. Reed), also a state-agency physician, affirmed
Dr. Knosp’s findings (AR. 643).
On June 15, 2009, additional x-rays of Baker’s spine revealed mild multilevel
degenerative disc disease (AR. 632). Four days later, PA Davis referred Baker to
neurosurgery for further evaluation, given his back pain’s lack of improvement (AR. 634635).
On July 9, 2009, Baker underwent Magnetic Resonance Imaging (MRI) of his
spine (AR. 645). Matthew White (White), the primary interpreting radiologist, detected a
mild diffuse disc bulge, moderate facet degenerative changes, and no nerve root
impingements (AR. 645-646). White reported there was “epidural fat that contribute[d]
to narrowing of the spinal canal” at one level (AR. 645-646). Stephan Woodman, M.D.
(Dr. Woodman), the staff radiologist, verified White’s findings (AR. 646).
On July 20, 2009, Baker called the VA and insisted PA Davis complete his
disability paperwork because if neurosurgery filled it out, it “would mess everything up”
(AR. 779).

Baker also stated he wanted to be seen earlier by neurosurgery than

originally scheduled (AR. 779).
Julie Sunderman, APRN (Sunderman), and Arun-Angelo Patil, M.D. (Dr. Patil),
eventually examined Baker as part of a neurological consultation on August 4, 2009
(AR. 657-660). Sunderman noted Baker reported exercising 15 hours per week and
both his gait and neurological responses were normal, except for mildly decreased
sensation in his right thigh (AR. 658-659). Baker’s strength and reflexes rated 5/5 (AR.
659).

Sunderman recommended Baker stop wearing a belt, he engage in better

diabetic management, lose weight, and take anti-inflammatory medications (AR. 659).
Sunderman and Dr. Patil agreed the lumbar MRI did not reveal any “significant findings”
(AR. 659). The following day, Baker called the VA seeking a second opinion and to
speak with PA Davis because he did not agree with Sunderman and Dr. Patil’s
4

recommendation he lose weight in order to alleviate his back pain (AR. 773).

On

August 21, 2009, Sunderman filed an addendum to her report after talking with Baker
(AR. 660). She noted Baker questioned her report and asked she clarify Baker is in a
great deal of pain (AR. 660).
On August 27, 2009, Baker returned to PA Davis with complaints of back pain
(AR. 656). On examination, PA Davis reported, “It took marked encouragement [for
Baker] to gain/utilize full strength and [Baker] stated he was having back and right thight
[sic] pain while doing this.” (AR. 657). Baker also displayed tenderness in his back but
his neurology, muscle coordination, and gait were roughly intact (AR. 657).

His

uncontrolled conditions included hypertension, obesity, hyperlipidemia, diabetes, and
back pain (AR. 657).
On September 4, 2009, PA Davis again treated Baker for his back pain (AR. 65556). On examination, Davis observed tenderness in Baker’s back, but his extremities
showed no signs of edema and his nerves, muscle coordination, and gait were intact
(AR. 655). As part of his report, PA Davis adopted verbatim what he had written during
Baker’s August 27, 2009, examination: “It took marked encouragement [for Baker] to
gain/utilize full strength and [Baker] stated he was having back and right thight [sic] pain
while doing this” (AR. 655).

Baker’s uncontrolled conditions included hypertension,

obesity, hyperlipidemia, diabetes, and back pain (AR. 655-656). Baker again declined
to participate in diabetes and weight-loss programs (AR. 656).
On September 9, 2009, PA Davis completed a Lumbar Spine RFC Questionnaire
(AR. 663-667). Therein, he identified clinical findings such as palpable muscle
tenderness in Baker’s back and loin and mildly decreased sensation in his right thigh as
the basis for his opinions (AR. 663). Baker’s relevant symptom was back pain (AR.
663). PA Davis concluded Baker was not a malingerer (AR. 663). PA Davis’ report
indicated Baker did not have positive straight leg raising; an abnormal gait; reflex
changes; crepitus; swelling; muscle spasm, atrophy, weakness; or gastritis (AR. 664).
He noted Baker engaged in intentional weight loss and had difficulty sleeping (AR. 664).
He believed Baker’s symptoms would “occasionally to frequently” interfere with his

5

attention and concentration3 (AR. 664). PA Davis reported Baker could walk only three
blocks; sit for only 30 minutes; and stand for only 20 minutes at a time (AR. 664, 665).
However, PA Davis stated Baker informed him Baker could stand or walk for six hours
total in a workday, though it had not been attempted (AR. 665). PA Davis opined Baker
would need to periodically alter positions and need to take unscheduled breaks
throughout the day (AR. 665).

He reported Baker could occasionally lift up to 20

pounds, twist, stoop, crouch, and climb stairs, but rarely climb ladders and stoop (AR.
666). Baker was also limited with respect to fine and gross manipulation with his hands
(AR. 666).

PA Davis ultimately believed Baker would be absent from work

approximately four days per month due to his symptoms (AR. 666).4
On September 29, 2009, Baker sought urgent care at the VA, complaining of
right-side numbness and tingling over the prior two days (AR. 746, 747).

Baker

reported he had recently stopped taking his back pain medication as a trial to test his
symptoms (AR. 747).

Veena Kumaravel, a resident physician, ordered an MRI of

Baker’s back (AR. 749).
On September 30, 2009, John Bertoni, M.D. (Dr. Bertoni), a VA staff physician,
examined Baker based on his complaints of right-side tingling and numbness for the
previous four days (AR. 693-697). Dr. Bertoni’s examination yielded normal results,
save for a 2/4 rating in his tendon reflexes (AR. 695-96). Dr. Bertoni could not rule out a
stroke (AR. 697). The same day, Dr. Woodman interpreted x-rays of Baker’s cervical
spine, which he believed revealed Baker was suffering from multilevel degenerative
cervical spondylosis and moderate degenerative disc disease at C3-C4 and C4-C5
levels (AR. 674).
On October 6, 2009, Baker reported to VA providers his tingling and numbness
had improved and he was “almost back to baseline” (AR. 687). On examination, Baker
appeared nervous but his attention and concentration were intact; his cranial nerves
were normal; his muscle strength and tone was normal, though his reflexes were 2/4;
3

PA Davis’ handwritten notations on the form are difficult to decipher, making it unclear how he arrived at
this conclusion.
4
Baker also saw PA Davis on September 12, 2009 (AR. 758). According to PA Davis’ notes, his
assessment and impressions of Baker remained unchanged from Baker’s previous visit on September 4,
2009, though PA Davis did prescribe additional medication for diabetes management (AR. 758-759).

6

and he could walk normally and displayed normal coordination (AR. 688).

Baker’s

physicians noted an MRI showed potential mild small vessel cerebrovascular disease
and advised Baker to continue his medications and control his risk factors (AR. 688).
On August 19, 2010, Baker returned to the VA for treatment by Christine Mitchell,
M.D. (Dr. Mitchell), related to his myofascial back pain (AR. 868-869). Dr. Mitchell
noted Baker was not taking his diabetes medication nor checking his blood sugar levels
regularly, but a physical examination yielded normal results (AR. 869). Dr. Mitchell
refilled Baker’s muscle relaxer prescription and recommended lifestyle modifications
(AR. 870-871). One month later on October 19, 2010, x-rays of Baker’s right foot, taken
by the VA, showed no abnormalities (AR. 806).
On October 28, 2010, Baker sought care at the VA for his hypertension (AR. 865866). Dr. Mitchell treated Baker and determined his hypertension was under control
(AR. 867). Dr. Mitchell also ordered an audiology consultation upon Baker’s complaints
of hearing loss (AR. 867).
Baker completed a hearing test on November 12, 2010 (AR. 854). The results
indicated moderately severe sensorineural hearing loss from 500 to 2000 Hz in the right
ear and moderately severe to mild sensorineural hearing loss from 3000 to 4000 Hz in
the left ear (AR. 854). An audiologist issued Baker a hearing aid for high-frequency
hearing loss (AR. 833-835).
On November 23, 2010, Dr. Eric Sluiter, DPM (Dr. Sluiter), a VA podiatrist,
examined Baker in connection with his complaints of right foot pain (AR. 830). The
examination results were normal, though Baker complained of pain upon palpation (AR.
831). Dr. Sluiter assessed pain with a possible stress fracture and a history of gout
(AR. 831). On November 24, 2010, a VA provider issued Baker an orthotic shoe (AR.
827).
On December 4, 2010, Baker participated in an audiology examination at the VA
(AR. 852-853).

The assessing audiologist noted his 1973 enlistment examination

showed mild high frequency hearing loss (AR. 852). Testing revealed hearing loss was
present and Baker stated he has trouble hearing background noise and when in crowds
(AR. 854).

Baker reported he believed his tinnitus began during service and has

remained with him since (AR. 853).
7

On December 9, 2010, Dr. Mitchell reported “[Baker] states that he is filing for
disability and would like to be tested for dyslexia . . . [Baker] reports that he has had
trouble reading with distractions as well as seeing things backwards since the 4th or 5th
grade” (AR. 849-850).

Dr. Mitchell assessed possible dyslexia and recommended

further testing (AR. 852).
On December 28, 2010, Lori Armstrong, Ph.D. (Dr. Armstrong), a VA
psychologist, conducted a cognitive evaluation of Baker (AR. 814-817, 837-839). The
results were normal (AR. 839). On January 4, 2011, Baker underwent memory testing
at the VA based on his own anxiety regarding dementia (AR. 817-825). Dr. Armstrong
conducted the testing, which revealed no significant cognitive deficits, but concluded
Baker was likely malingering and possibly feigning his symptoms of memory impairment
(AR. 825). As part of a discussion regarding general medical issues, Baker informed
Dr. Armstrong he was losing weight and his pain was well-controlled (AR. 819).
On January 26, 2011, Baker met with Isaac Witkowski, M.D. (Dr. Witkowski), in
reference to his disability claim pending before the VA (AR. 876-889). Dr. Witkowski
reported Baker suffered from chronic mechanical low back strain with multilevel
degenerative disc disease and right leg sciatica (AR. 888). Dr. Witkowski concluded
Baker’s pain interfered with all daily activities and his condition likely precluded
employment (AR. 889).
On January 27, 2011, Baker met with Dr. Mitchell to discuss discrepancies in his
medical records (AR. 890-895). Baker questioned why his most recent foot x-rays did
not show evidence of a prior fracture and explained a three-year history of back spasms
had not been properly included in his file (AR. 894-895). Baker had his foot x-rayed
again and the interpreting physician reported there was evidence of potential
degenerative joint disease or, alternatively, evidence of a prior fracture (AR. 913).
On March 2, 2011, the VA granted Baker service connected disability benefits for
tinnitus and bilateral hearing loss (AR. 481). The VA also granted Baker a non-service
connected pension for the following disabilities: right foot condition, chronic mechanical
low back strain with multilevel degenerative disc disease, diabetes mellitus type II,
myofascial pain syndromes, hypertension NOS, erectile dysfunction, myocardial
infarction with dyspnea on exertion, dermatitis, and meralgia paresthetica (AR. 484).
8

The VA found these non-service connected disabilities combine for a 70% disabling
disability (AR. 484).
On March 28, 2011, Meryl Severson II, M.D. (Dr. Severson), performed a
consultative evaluation of Baker (AR. 896-908). Dr. Severson observed Baker “walked
easily with a bouncy stride,” but had “some difficulty” getting on and off the examination
table; shifted positions during the interview; and held his back stiffly (AR. 897-898). A
complete physical examination yielded normal results (AR. 898).

Dr. Severson

assessed degenerative disc disease with mild degenerative facet changes; chronic back
pain; diabetes; hypertension; and hyperlipidemia (AR. 898). Dr. Severson concluded
Baker could lift and carry up to 10 pounds frequently; sit for 25 minutes at a time and
175 minutes in a workday; stand for the same durations; walk for up to one block with
10 pounds in each hand; climb stairs with a hand rail; use his arms as needed; operate
a vehicle for 45 minutes; stoop, kneel, or crouch; and perform manipulative tasks
normally (AR. 896-899, 901-906). Dr. Severson believed weight loss would improve
Baker’s ability to sit, stand, or walk (AR. 899). On May 22, 2012, Severson filed an
addendum to his report, stating based on an eight-hour workday, Baker could walk for
60 minutes and sit or stand for 205 minutes each (AR. 987).
On June 20, 2011, Baker met with Patricia Newman, Ph.D. (Dr. Newman), a
state-agency psychologist (AR. 957). Baker underwent a battery of cognitive tests and
Dr. Newman concluded Baker displayed no severe mental impairments (AR. 957-969).
Dr. Newman also reported “[Baker] was viewed as maybe feigning [symptoms]” (AR.
969).
On July 14, 2011, James Bane, M.D. (Dr. Bane), a state-agency physician,
completed an RFC assessment and found Baker could lift 20 pounds occasionally and
10 pounds frequently; stand or walk for approximately six hours in an eight-hour
workday; and sit for about six hours in the same period (AR. 971-980).

Dr. Bane

reported Baker could occasionally climb, balance, stoop, kneel, crouch, and crawl (AR.
973). He noted Baker’s credibility was doubtful due to his malingering on the VA’s
memory testing and also because Baker’s allegations were greater than expected
based on pathology (AR. 980). Ultimately, Dr. Bane concluded Baker possessed the
ability to work (AR. 980).
9

On January 13, 2012, Baker requested a renewal of his muscle relaxer
prescriptions, explaining he had not taken his medication in months but had recently
experienced increased back pain (AR. 1056).

Dr. Mitchell issued the requested

prescription (AR. 1056).
On March 9, 2012, Dr. Mitchell evaluated Baker for complaints of lower back
pain, for which he occasionally took a muscle relaxer (AR. 1048). Baker requested use
of the VA’s traction table because he said it helped alleviate his back pain (AR. 1048).
Baker denied any other complaints during the visit (AR. 1048). Dr. Mitchell declined to
make any changes to his treatment plan and scheduled a follow-up appointment for a
year later, unless problems arose (AR. 1049-1050).
On April 4, 2012, Baker underwent a physical therapy evaluation to treat his
chronic back pain (AR. 1013-16). On examination, Baker complained of pain with range
of motion and rated 4/5 in terms of strength (AR. 1014).

He also had decreased

flexibility (AR. 1014). Baker requested traction therapy because it had worked for him in
the past (AR. 1015, 1043). Baker’s physical therapist acquiesced to his request, but
noted traction therapy was not designed to address his type of back pain (AR. 1015,
1043). Baker discontinued therapy in May, 2012 (AR. 1040).
On August 28, 2012, Baker visited the VA complaining of neck pain (AR. 10331034). A provider noted cervical node enlargement accompanied by tenderness (AR.
1034).
On September 5, 2012, Baker went to the VA complaining of nausea and
dizziness, which he thought to be a medicinal side effect (AR. 1026-1027). Baker did
not monitor his blood sugars (AR. 1027). Baker’s doctor submitted a blood work order,
adjusted his medications and ordered him a blood sugar monitor (AR. 1028).

Dr.

Mitchell subsequently requested a Computerized Tomography (CT) scan (AR. 1029). A
September 18, 2012, CT scan of Baker’s abdomen was unremarkable (AR. 993-994).
On September 19, 2012, Baker reinitiated physical therapy to treat his back pain
(AR. 1006-1011, 1019). On examination, Baker complained of pain upon palpation and
range of motion testing (AR. 1010). On September 27, 2012, Baker reported he felt
much better after heat therapy and traction, but his pain and muscle tightness had
returned to a rating of 7/10 (AR. 1017).
10

B.

Administrative Hearings
The ALJ held an administrative hearing on November 8, 2012, which Baker

attended, accompanied by counsel (AR. 31-70).

Baker’s counsel clarified none of

Baker’s alleged mental impairments were at issue (AR. 35). Baker testified traction
eased his thoracic back pain and he continued to use the traction table at the VA two
times per week (AR. 36-37). The ALJ queried whether a hypothetical claimant with the
ability to lift and carry up to 20 pounds frequently; sit for 25 minutes at a time for a total
of 205 minutes; stand for the same amount of time; walk for a total of 60 minutes;
require 10 minutes of additional break time; walk a block with 10 pounds in each hand;
take stairs with a handrail; use his arms as necessary; operate a vehicle for 45 minutes;
and stoop, kneel, crouch, and manipulate objects without impairment could perform any
of Baker’s past relevant work (AR. 54-55, 57). The testifying Vocational Expert (VE)
stated she believed an individual able to perform the above mentioned tasks was
employable as a wholesale sales representative and in some circumstances a circuit
board supervisor or information clerk (AR. 58).
At a previous hearing on February 15, 2012, Baker testified he was able to
shower, make coffee, and engage in traction (AR. 93).

He tried to perform light

exercises and stretches (AR. 93). He used his traction machine whenever his back
locked up, which ranged from 3 to 7 days per week (AR. 94). Lying on the floor relieved
his pain (AR. 95). Baker stated he could only sit for approximately 10 minute intervals
(AR. 95). He said he took a muscle relaxer to alleviate his symptoms, which made him
feel nauseous and “drugged” (AR. 96). Baker testified his back pain persisted at a level
of 7 or 8 (AR. 98). Baker also testified he experienced occasional tingling in his right leg
(AR. 98). He said he could shop for groceries, but sometimes had to use a motorized
cart (AR. 98-99). Baker had applied for jobs, but had not been hired (AR. 100). He
stated he could not watch movies because he could not sit very long (AR. 100). Baker
testified his tinnitus reduced his concentration (AR. 100). He said he could bend over,
but had difficulty reaching the floor or tying his shoes (AR. 101). He did not think using
his TENS unit helped (AR. 105). Baker stated he had lost approximately 35 pounds
(AR. 107).
11

THE ALJ’S DECISION
The ALJ issued his final decision on February 5, 2013, in which he determined
Baker was not disabled within the meaning of the Act (AR. 14, 23). The ALJ framed the
issue as to whether Baker was disabled under sections 216(i), 223(d), and
1614(a)(3)(A) of the Act (AR. 13). The ALJ defined disability as the inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment or combination of impairments that can be expected to result in
death or last for a continuous period of not less than twelve months (AR. 13). See 42
U.S.C. § 423; 20 C.F.R. § 404.1505.
The ALJ must evaluate a disability claim according to the sequential five-step
analysis established by the Social Security regulations. See 20 C.F.R. § 404.1520(a)(f); Phillips v. Astrue, 671 F.3d 699, 701 (8th Cir. 2012).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was
employed; (2) [he] was severely impaired; (3) [his]
impairment was, or was comparable to, a listed impairment;
(4) [he] could perform past relevant work; and if not, (5)
whether [he] could perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). More specifically, the ALJ
examines:
[A]ny current work activity, the severity of the claimant’s
impairments, the claimant’s residual functional capacity and
age, education and work experience. See 20 C.F.R. §
404.1520(a). If the claimant suffers from an impairment that
is included in the listing of presumptively disabling
impairments (the Listings), or suffers from an impairment
equal to such listed impairment, the claimant will be
determined disabled without considering age, education, or
work experience.
If the Commissioner finds that the
claimant does not meet the Listings but is nevertheless
unable to perform his or her past work, the burden of proof
shifts to the Commissioner to prove, first, that the claimant
retains the residual functional capacity to perform other kinds
of work, and, second, that other such work exists in
substantial numbers in the national economy. A claimant’s
residual functional capacity is a medical question.

12

Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000) (internal citations omitted). “If a
claimant fails to meet the criteria at any step in the evaluation of a disability, the process
ends and the claimant is determined to be not disabled.” Pelkey v. Barnhart, 433 F.3d
575, 577 (8th Cir. 2006) (citation omitted); see Kluesner v. Astrue, 607 F.3d 533, 536
(8th Cir. 2010).
In this case, the ALJ followed the appropriate sequential analysis. At step one,
the ALJ noted Baker did not engage in substantial gainful activity since October 31,
2008 (AR. 15).

At step two, the ALJ determined Baker had the following severe

impairments as defined by Social Security regulations:

Low back strain; mild

degenerative disk disease at L2-3 and L3-4; history of coronary artery disease; diabetes
mellitus; obesity; and hypertension (AR. 15). The ALJ determined the above mentioned
severe impairments caused significant limitations on Baker’s ability to do basic work
related activities (AR. 16). Additionally, the ALJ found Baker did not have a severe
mental impairment (AR. 16).
At the third step, the ALJ determined although Baker had some symptoms
relating to physical disorders limiting his ability to perform a full range of work, the
necessary elements and severity were not sufficiently documented in the record to meet
or equal the requirements of any physical impairments listed in the Act (AR. 16).
Accordingly, the ALJ concluded Baker did not have an impairment or combination of
impairments meeting or medically equivalent to one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 419.926) (AR. 16). The ALJ determined Baker’s
musculoskeletal, diabetic, cardiovascular, and obesity impairments did not meet the
necessary requirements for listing-level severity (AR. 16).
Before proceeding to step four of the sequential evaluation process, the ALJ
determined Baker’s ability to perform work-related functions, defined as Baker’s RFC,
was limited to the following:
light work as defined in 20 C.F.R. § 404.1567(b) except as
follows: He could lift and carry up to 20 pounds on a
frequent basis. He could sit for 25 minutes at a time for a
total of 205 minutes (3 hours, 25 minutes) in an 8-hour day.
He could stand for 25 minutes at a time for a total of 205
minutes (3 hours, 25 minutes) in an 8-hour day. He could
13

walk 1 block at a time, carrying 10 pounds in each hand for a
total of 60 minutes. He could alternate sitting, standing, and
walking as needed and complete an 8-hour workday. During
the course of a regular day he could have one break of up to
10 minutes in addition to normal break periods, to go the
bathroom or get a drink. The claimant could operate a motor
vehicle for 45 minutes at a time; he could drive more than
one time in a day. He could negotiate stairs with a handrail
and use his arms over his head as necessary. He has no
limitation in performing fine or coarse motor tasks with his
hands. He could stoop, kneel, and crouch.
(AR. 16, 17).
The ALJ explained his RFC determination was based on a consideration of all
Baker’s symptoms and the extent to which the symptoms could reasonably be accepted
as consistent with objective medical evidence and other evidence based on the
requirements of 20 C.F.R. §§ 404.1529 and 416.929 and Social Security Rulings (SSR)
96-4p and 96-7p (AR. 17). In his decision, the ALJ followed a two-step process used to
consider the importance of a claimant’s symptoms in making an RFC determination
(AR. 17). In the first step, the ALJ must determine whether there is any underlying
medically determinable physical impairment present that can reasonably be expected to
produce the claimant’s pain or other symptoms (AR. 17). Second, once an underlying
physical impairment that can reasonably be expected to produce the claimant’s pain or
other symptoms has been shown, the ALJ is required to determine the degree to which
they limit the claimant’s functioning (AR. 17). To the extent a statement about the
intensity, persistence, or limiting nature of pain or other symptoms is not substantiated
by objective evidence, the ALJ must make a finding on the credibility of the statement
based on the entire case record (AR. 17).
The ALJ gave substantial weight to Dr. Severson’s opinions based on Dr.
Severson’s examination of Baker on March 28, 2011 (AR. 17). The ALJ asked Dr.
Severson to clarify his findings from the March 28, 2011, examination of Baker because
his initial assessment did not consider Baker’s abilities relevant to an eight-hour
workday (AR. 17, 18). The ALJ reasoned Dr. Severson’s amended report on March 31,
2011, simply acted as a clarification of the original (AR. 17).

The ALJ noted Dr.

Severson is an acceptable medical and treating source (AR. 18). The ALJ explained he

14

gave greater weight only to Dr. Severson’s original narrative within his report and not to
any portions containing information from a checklist (AR. 18).
The ALJ gave great weight to the state agency’s opinion Baker could perform
light work (AR. 18). See SSR 96-6p. The ALJ reasoned Dr. Knosp’s opinion, affirmed
by Dr. Reed, was consistent with Dr. Severson’s opinion (AR. 18). However, the ALJ
opted to give little weight to the state agency’s assertion Baker could perform a
supervisory role because the VE’s testimony established Baker would be unable to
perform his past, light job as a supervisor (AR. 18-19, 45). Accordingly, the ALJ gave
greater weight only to the state agency’s finding Baker could participate in light work
(AR. 18-19).

Furthermore, the ALJ noted the various rationales behind the state

agency’s findings (AR. 19). Specifically, the ALJ referenced Dr. Knosp’s opinion and
Dr. Reed’s concurrence, which dictated the medical record did not support the degree of
limitations the claimant alleged in terms of walking, standing, and sitting (AR. 19).
The ALJ analyzed additional medical evidence and gave little weight to both Dr.
Witkowski’s and PA Davis’ opinions (AR. 20). The ALJ opined Dr. Witkowski’s opinion
resembled a recitation of Baker’s complaints rather than one premised on objective
clinical findings (AR. 20). The ALJ prescribed little weight to PA Davis’ opinion as well,
explaining he is a not an acceptable medical source, nor was his opinion supported by
other substantial medical evidence (AR. 20).
In making his decision, the ALJ found persuasive Baker’s ability to complete daily
activities (AR. 21).

The ALJ explained Baker’s testimony from previous hearings

established he was capable of personal care, preparing meals, handling his
medications, and exercising, in addition to completing traction therapy on his own (AR.
21).

The ALJ found Baker lacked credibility, noting Baker’s complaints were

inconsistent with Baker’s RFC assessment, his testimony on November 8, 2012,
concerning muscle relaxers was contrary to his medical records, and Dr. Armstrong’s
report specifically indicated she believed Baker was exaggerating claims of frequent
memory loss (AR. 21).

Ultimately, the ALJ concluded Baker’s symptoms and

impairments were not as severe as Baker alleged and as a result, the ALJ determined
Baker was not disabled (AR. 22-23).

15

STANDARD OF REVIEW
A district court is authorized jurisdiction to review a decision to deny disability
benefits pursuant to 42 U.S.C. § 405(g). A district court is to affirm the Commissioner’s
findings if “supported by substantial evidence on the record as a whole.” Young v.
Astrue, 702 F.3d 489, 491 (8th Cir. 2013). Substantial evidence is defined as less than
a preponderance, but enough that a reasonable mind might accept it as adequate to
support a decision. See Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010); see also
Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009) (noting “the ‘substantial evidence on
the record as a whole’ standard requires a more rigorous review of the record than does
the ‘substantial evidence’ standard”). “If substantial evidence supports the decision,
then [the court] may not reverse, even if inconsistent conclusions may be drawn from
the evidence, and even if [the court] may have reached a different outcome.”
McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010). “[I]t is the court’s duty to
review the disability benefit decision to determine if it is based on legal error.” Nettles
v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983). The court reviews questions of
law de novo. See Miles v. Barnhart, 374 F.3d 694, 698 (8th Cir. 2004). Findings of
fact are considered conclusive if supported by substantial evidence on the record as a
whole. See Nettles, 714 F.2d at 835; Renfrow v. Astrue, 496 F.3d 918, 920 (8th Cir.
2007).

Furthermore, “[the court] defer[s] to the ALJ’s determinations regarding the

credibility of testimony, so long as they are supported by good reasons and substantial
evidence.” Pelkey, 433 F.3d at 578 (quoting Guilliams v. Barnhart, 393 F.3d 798,
801 (8th Cir. 2005)).

DISCUSSION
A.

Dr. Witkowski and PA Davis
Baker argues the ALJ failed to give sufficient weight to his treating medical

sources. See Filing No. 19 - Brief p. 9-12. Specifically, Baker argues the ALJ did not
afford proper weight to Dr. Witkowski and PA Davis’ findings and opinions when
calculating his RFC. Id.
“A treating physician’s opinion is given controlling weight if it is demonstrable by
medically acceptable clinical and laboratory diagnostic techniques and is not
16

inconsistent with other substantial evidence in a claimant’s case record.” Halverson v.
Astrue, 600 F.3d 922, 929 (8th Cir. 2010); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
A treating source is a “physician, psychologist, or other acceptable medical source who
[is currently], or has provided [the claimant], with medical treatment or evaluation and
who [currently has], or has had, an ongoing treatment relationship with [the claimant].”
20 C.F.R. § 404.1502. The commissioner “may consider an acceptable medical source
who has treated or evaluated [the claimant] only a few times or only after long intervals
(e.g., twice a year) to be [the claimant’s] treating source if the nature and frequency of
the treatment or evaluation is typical for [the claimant’s] condition(s).” Id. Acceptable
medical sources are defined as:
1. Licensed physicians (medical or osteopathic doctors);
2. Licensed or certified psychologists . . . ;
3. Licensed optometrists . . . ;
4. Licensed podiatrists . . . ; and
5. Qualified speech-language pathologists.
20 C.F.R. § 404.1513(a). In addition to assessing the opinions of acceptable medical
sources, the ALJ may also account for the opinions of “other sources.” See 20 C.F.R. §
404.1513(d)(1)-(4).

Other sources include nurse practitioners, physician assistants,

audiologists, and therapists. Id.; see also Lacroix v. Barnhart, 465 F.3d 881, 885-86
(8th Cir. 2006).
A non-treating source is defined as “a physician, psychologist, or other
acceptable medical source who has examined [the claimant] but does not have, or did
not have, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502.
When an opinion is not from a treating source, the ALJ is entitled to weigh it among
other medically related opinion evidence using the criteria set forth in 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6). Relevant factors include:
1. Whether the expert examined the claimant;
2. Whether and to what extent the expert treated the
claimant;
3. Whether the opinion relies upon probative evidence and
provides a persuasive rationale;
4. The consistency of the opinion with the record as a
whole;
17

5. The specialization, if any, of the medical source; and
6. Any other relevant considerations, including the source’s
familiarity with the Commissioner’s standards and the extent
to which the source is familiar with the case record.
20 C.F.R. §§ 404.1527(c), 416.927(c).
Here, the ALJ was not required to afford controlling weight to the opinions of Dr.
Witkowski or PA Davis because neither qualified as treating sources. For non-opinion
evidence, the ALJ is entitled to weigh the evidence provided by Dr. Witkowski and PA
Davis against other inconsistent evidence in the record to aid in making a disability
determination. See 20 C.F.R. § 404.1520b(b).
Dr. Witkowski, a physician, is clearly an acceptable medical source. However,
Dr. Witkowski evaluated Baker only one time as part of a VA benefits consultation. See
AR. 876-889. There is no evidence in Dr. Witkowski’s report or elsewhere in the record
indicating Dr. Witkowski ever treated Baker again, nor were there any notes in the
report contemplating a follow-up examination. Further, Baker’s repeated visits to the VA
for chronic back issues requiring frequent treatment and evaluation demonstrates his
medical condition required more attention than a single visit to Dr. Witkowski. One visit
in this scenario can hardly effectuate the ongoing treatment relationship contemplated
by § 404.1502. See Proctor v. Astrue, 766 F. Supp. 2d 960, 990 (W.D. Mo. 2011). As
a result, Dr. Witkowski’s opinion is not of a “treating source.” Rather, he is a “nontreating source,” and his opinion is subject to scrutiny among other medically relevant
opinion evidence. See 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
The ALJ analyzed Dr. Witkowski’s opinion and concluded it was not constructed
from probative evidence, but merely evinced a restatement of Baker’s symptoms.5 See
AR. 20; Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (finding no error in ALJ’s
decision to provide little weight to doctor’s opinion prefaced largely on the claimant’s restatement of his symptoms).

The ALJ reasoned Dr. Witkowski’s opinion was not

5

In his brief, Baker asserts the ALJ should have re-contacted Dr. Witkowski to resolve any ambiguities or
request clarification regarding his report, yet fails to elaborate why. See Filing No. 19 - Brief p. 12. In any
event, this contention is misplaced. Not only was Baker seen by numerous physicians and medical
professionals, there is nothing in the record to suggest there was insufficient information from which the
ALJ could make a determination as to Baker’s disability status. See Martise v. Astrue, 641 F.3d 909,
927 (8th Cir. 2011) (explaining an ALJ is required to re-contact a provider when the record as a whole is
insufficient to render a disability decision). Accordingly, the ALJ was not required to re-contact Dr.
Witkowski.
18

entitled to great weight because Dr. Witkowski examined Baker only once and his
opinion was based on Baker’s subjective statements relating his back pain and not on
clinical findings.6 See AR. 20. Dr. Witkowski’s report specifically noted “no testing was
performed today,” yet Dr. Witkowski opined Baker’s condition would likely prohibit
employment “because of the level of back pains and associated right-side sciatica that
[Baker] complains of.” See AR. 888-889. Additionally, evaluations of Baker by two
different physicians, Drs. Bane and Severson, produced opinions differing from that of
Dr. Witkowski. See AR. 896-906, 980, 987. Because Dr. Witkowski was a non-treating
source, other experts came to different conclusions regarding Baker’s ailments and
disability status, and there is evidence Dr. Witkowski’s report and recommendation was
premised on Baker’s own complaints, this court will not disrupt the ALJ’s decision to
provide little weight to Dr. Witkowski’s opinion.
Conversely, PA Davis treated Baker with regularity, evaluating him roughly every
three months. See AR. 663. However, physician’s assistants are listed under “other
sources” and are not considered “acceptable medical sources.”

20 C.F.R. §

404.1513(d)(1); see also Lacroix, 465 F.3d at 885-86. An “other source” opinion may
be used to show the severity of an impairment and how it affects the individual’s ability
to function, but may not be used to establish an impairment.

See 20 C.F.R. §

404.1513(d); SSR 06-3p. However, “[i]n determining what weight to give ‘other medical
evidence,’ the ALJ has more discretion and is permitted to consider any inconsistencies
found within the record.” Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005)
(citing 20 C.F.R. § 416.927(d)(4)).
Here, PA Davis is not an acceptable medical source and the ALJ is not required
to afford his opinion controlling weight. In fact, the ALJ chose not to give PA Davis’
opinion great weight, stating PA Davis’ opinion Baker would need to miss four days of
work a month due to his back ailment was “not supported by his progress notes” and
was “contradicted by substantial medical evidence of record.” See AR. 20. The reports
6

Even if Dr. Witkowski was a treating source, the ALJ’s determination not to give his opinion greater
weight was acceptable. “[A] treating physician’s opinion deserves no greater respect than any other
physician’s opinion when the treating physician’s opinion consists of nothing more than vague, conclusory
statements.” Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004). Here, Dr. Witkowski’s report and
recommendation was simply a recitation of Baker’s complaints with little to no clinical corroboration,
further demonstrating the ALJ’s decision not to afford Dr. Witkowski’s opinion great weight was
acceptable.
19

and opinions of Drs. Severson, Bane, Knosp, and Reed all support this assertion by
indicating either a lack of clinical evidence consistent with the level of Baker’s reported
pain, or by advising Baker possessed adequate physical capabilities.7 See AR. 17, 19.
As to PA Davis’ reports, the ALJ was permitted to assess them in light of their
inconsistencies with the record as a whole, including the findings and opinions of other
providers. The inconsistencies between PA Davis’ reports and numerous providers
gave the ALJ an adequate basis to give little or no weight to the reports of PA Davis.
Consequently, the ALJ’s determination not to provide greater weight to PA Davis’
reports was appropriate.
For the reasons stated above, there was substantial evidence for the ALJ to
afford less than great weight to the opinions of both Dr. Witkowski and PA Davis. There
was also substantial evidence for the ALJ to conclude the record as a whole did not
support the medical evidence included within the reports prepared by either Dr.
Witkowski or PA Davis.

B.

VA Disability Determination
Baker asserts the ALJ erred by failing to account for the VA’s disability

determination. See Filing No. 19 - Brief p. 13.
Claimants are entitled to use disability determinations made by separate
governmental agencies as evidence of disability. 20 C.F.R. § 404.1512(b)(5). The
presiding ALJ is required to address these outside determinations, though the ALJ
remains free to formulate his own decision as to whether the claimant is disabled. See
SSR 06-3p p. 6, 7 (Aug. 9, 2006); Brown v. Colvin, --- F. Supp. 2d. ---, 2014 WL
199839, at * 6 (D. Neb. Jan. 16, 2014) (citing Hamel v. Astrue, 620 F. Supp. 2d 1002,
1025 (D. Neb. 2009) (stating the VA’s disability determination is “entitled to some
weight and must be considered in the ALJ’s decision”)). “If the ALJ rejects the VA’s
finding disability, reasons should be given to enable a reasoned review by the courts.”
Brown, at * 6 (quoting Hamel, 620 F. Supp. 2d at 1025). When an ALJ fails to provide
a rationale for rejecting the VA’s determination, he has committed reversible error. See

7

The ALJ also referred to reports from medical professionals who expressed doubt regarding Baker’s
credibility as a factor supporting his decision (AR. 21-23). Baker’s credibility is discussed below.
20

Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998) (ruling the ALJ failed to account
for the VA’s disability determination when the VA undertook an “extensive physical
medical examination” of the claimant spanning over thirty pages and when the finding
was consistent with those of another governmental agency). However, an ALJ has not
committed reversible error even if the ALJ fails to properly account for certain evidence,
so long as there exists evidence to the contrary with which the ALJ relied.

See

Buckner v. Astrue, 646 F.3d 549, 559-60 (8th Cir. 2011).
The Commissioner concedes the ALJ failed to explicitly address the VA’s finding
Baker is disabled. See Filing No. 20 - Brief p. 22. Indeed, nowhere in the ALJ’s report
did he mention the VA’s disability determination.

However, the VA’s decision was

prefaced, in large part, on only two physical examinations; Baker’s visit to the VA
audiologist on December 4, 2010, and his evaluation by Dr. Witkowski on January 26,
2011. See AR. 482. The VA decision regarding non-service benefits does not refer to
hearing impairments, leaving Baker’s VA medical records and the report from Dr.
Witkowski as the only remaining information from which the VA could have anchored its
determination.
The party who “seeks to have a judgment set aside because of an erroneous
ruling carries the burden of showing that prejudice resulted.” Shinseki v. Sanders, 556
U.S. 396, 409 (2009). Here, the ALJ directly assessed the evidence underlying the
VA’s non-service related disability determination: Dr. Witkowski’s report and other VA
records. See AR. 20-21, 482. As discussed above, the ALJ weighed Dr. Witkowski’s
findings against the record as a whole and determined his opinion was predicated on
little other than Baker’s subjective complaints. Review of Baker’s entire medical history
after October 30, 2008—including the same records relied upon by the VA as a part of
the VA’s disability determination—led the ALJ to conclude Baker was not disabled.
Because the ALJ explicitly discounted Dr. Witkowski’s opinion and accounted for the
same evidence with which the VA made its non-service disability determination, the ALJ
constructively addressed the substance of the VA’s findings. See Pelkey v. Barnhart,
433 F.3d 575, 579-80 (8th Cir. 2006) (holding “[a]lthough [the ALJ] did not specifically
mention the [VA’s assessment], the ALJ did not err because he fully considered the
evidence underlying the VA's final conclusion”). Clearly Baker cannot argue he was
21

prejudiced by the ALJ’s failure to specifically mention the VA’s decision when the ALJ
expressly evaluated the very same information from which the VA relied. Although the
ALJ did not specifically refer to the VA’s disability determination in his final decision, the
ALJ accounted for the same evidence used by the VA, effectively avoiding any
prejudice against Baker.

C.

Baker’s Tinnitus
Baker argues the ALJ committed reversible error because the ALJ declined to

categorize his tinnitus as severe. See Filing No. 19 - Brief p. 14, 15. Specifically, he
argues the ALJ erred in failing to consider how Baker’s tinnitus affects his ability to
concentrate and by not requesting clarification on the matter. Id. at 15.
Disability claimants may only receive benefits if their impairments are severe.
Step two in the ALJ’s disability analysis requires the ALJ to assess whether the claimant
has a severe impairment.

20 C.F.R. § 404.1520(c).

“If [the claimant has] an

impairment(s) which meets the duration requirement and is listed in appendix 1 or is
equal to a listed impairment(s), [the ALJ] will find [the claimant] disabled . . . .” Id. §
404.1520(d).

“If [the claimant does] not have any impairment or combination of

impairments which significantly limits [the claimant’s] physical or mental ability to do
basic work activities, [the ALJ] will find that [the claimant does] not have a severe
impairment and [is], therefore, not disabled . . . .”

Id. § 404.1520(c); Page v. Astrue,

484 F.3d 1040, 1043 (8th Cir. 2007). Basic work activities include:
1. Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling;
2. Capacities for seeing, hearing, and speaking;
3. Understanding, carrying out, and remembering simple
instructions;
4. Use of judgment;
5. Responding appropriately to supervision, co-workers and
usual work situations; and
6. Dealing with changes in a routine work setting.
Id. §§ 404.1521(b), 416.921(b). The claimant bears the burden of demonstrating the
severity of his or her impairments. Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir.
2007). Similarly, if the ALJ commits an error, the claimant must demonstrate the error
was material to his claim. Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012). “To show
22

an error was not harmless, [the claimant] must provide some indication that the ALJ
would have decided differently if the error had not occurred.” Id. (citing Van Vickle v.
Astrue, 539 F.3d 825, 830 (8th Cir. 2008)).
The Commissioner concedes the ALJ did not address Baker’s tinnitus, though
the Commissioner again asserts the result was harmless error. See Filing No. 20 - Brief
p. 24. The ALJ’s decision did fail to mention Baker’s tinnitus. However, this court
“reviews the record to ensure that an ALJ [did] not disregard evidence or ignore
potential limitations, but [this court does] not require an ALJ to mechanically list and
reject every possible limitation.” McCoy v. Astrue, 648 F.3d 605, 614-15 (8th Cir.
2011) (citing Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003)). Although the
VA determined Baker’s tinnitus was somewhat disabling, the VA’s decision clearly
established the benefits it granted Baker related to his service (AR. 482). Baker was
discharged in August of 1978, yet later worked as a material handler, circuit board
supervisor, wholesale sales representative, crane operator, and janitorial services
supervisor (AR. 50, 582, 485-486).

During his December 4, 2010, audiology

examination, Baker told Dr. Brenda Hoover he believed his tinnitus began during
service and has remained with him since (AR. 853). Thus, even according to Baker, he
was able to perform his post-service jobs despite suffering from recurring tinnitus.
Even if Baker does struggle to concentrate due to his tinnitus, such a limitation
cannot enjoy a severe designation given the limitation never precluded him from
working in the past.8 For the same reason, the ALJ was not required to analyze how
Baker’s tinnitus operates as a factor among Baker’s other impairments. Additionally,
Baker never points to any evidence suggesting the ALJ would have decided his case
differently had he specifically addressed the tinnitus. Moreover, Baker failed to advance
any evidence demonstrating the ALJ was confused or needed clarification regarding his
diagnosis. See Filing No. 19 - Brief p. 14-15. Accordingly, the ALJ did not err by
declining to seek additional opinions on the matter and any lack of explicit reference to
Baker’s tinnitus by the ALJ was harmless.
8

Baker argues the ALJ failed to account for the fact he stated the ringing in his ears was louder during a
September 5, 2012, visit to the VA, resulting in reversible error. See Filing No. 21 - Reply Brief p. 4.
Baker however, does not supplement this assertion with medical evidence from anywhere in the record.
Without medical evidence to substantiate his allegation, Baker’s claim devolves into nothing more than a
subjective complaint; a category of evidence properly addressed by the ALJ.
23

D.

Baker’s Credibility and Complaints of Pain
Baker argues the ALJ erred by finding Baker’s testimony was not credible. See

Filing No. 19 - Brief p. 20-22. Baker also contends the ALJ did not properly account for
his complaints of pain when making his RFC determination. See Filing No. 19 - Brief p.
15, 16.
When a claimant’s impairment lay beyond the ambit of Appendix 1 and requires
further analysis to make a disability determination, the ALJ must calculate the claimant’s
RFC.9 20 C.F.R. § 416.905. The RFC assessment is made by analyzing medical
evidence and any other relevant evidence on record. 20 C.F.R. § 416.945(a)(3). An
ALJ must consider all of the claimant’s symptoms and the extent to which these
symptoms are consistent with objective evidence. 20 C.F.R. §§ 404.1529, 416.929;
SSR 96-4p. If the claimant demonstrates there is an underlying medically determinable
physical impairment that can reasonably be expected to produce the claimant’s pain or
symptoms, the ALJ then considers the intensity, persistence, and limiting effects of the
claimant’s symptoms. Id. Whenever statements about pain or other symptoms are not
substantiated by objective medical evidence, the ALJ is entitled to measure the
claimant’s credibility. SSR 96-7p.
“Among the considerations the ALJ takes into account when determining a
claimant’s RFC is the claimant’s subjective complaints of pain.” Perks v. Astrue, 687
F.3d 1086, 1092 (8th Cir. 2012). When considering the claimant’s subjective complaints
of pain, the ALJ evaluates “(1) the claimant’s daily activities, (2) the duration, frequency
and intensity of pain, (3) precipitating and aggravating factors, (4) the dosage,
effectiveness and side effects of any medication, and (5) functional restrictions.”
Teague v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (citing Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984)).

“The ALJ may properly discount the claimant’s

testimony where it is inconsistent with the record.” Id. (citation omitted). “The ALJ is
not required to discuss methodically each Polaski consideration, so long as he
acknowledged and examined those considerations before discounting a claimant’s
subjective complaints.” Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012).
9

The RFC signifies the most a claimant can do, despite his limitations. 20 C.F.R. § 416.945(a)(1).
24

“Another factor to be considered is the absence of objective medical evidence to
support the complaints, although the ALJ may not discount a claimant’s subjective
complaints solely because they are unsupported by objective medical evidence.”
Halverson v. Astrue, 600 F.3d 922, 931-32 (8th Cir. 2010). “A disability claimant’s
subjective complaints of pain may be discounted if inconsistencies in the record as a
whole bring those complaints into question.” Gonzales v. Barnhart, 465 F.3d 890, 895
(8th Cir. 2006). Additionally, “[t]he 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). “If an ALJ explicitly discredits the claimant’s testimony and gives
good reason for doing so, [the courts] will normally defer to the ALJ’s credibility
determination.” Renstrom, 680 F.3d at 1065.
The ALJ in this case specifically referenced his obligation to consider Baker’s
symptoms as a part of his RFC determination. See AR. 17. In fact, the ALJ expressly
noted Baker suffered from medically determinable impairments which could reasonably
be expected to produce his symptoms.

See AR. 22.

However, in assessing the

intensity, persistence, and limiting effects of Baker’s symptoms, the ALJ determined
Baker’s subjective complaints of pain were not credible because they were contradicted
by the record. Id.
The ALJ devoted an entire subsection in his decision to Baker’s credibility,
concluding Baker’s reported degree of pain was inconsistent with objective evidence
from the record.

See AR. 21-23.

Specifically, the ALJ’s decision finding Baker

incredible was predicated on: (1) Baker performing household and daily living tasks,
suggesting a higher RFC; (2) Baker providing contradictory statements regarding the
frequency of his muscle relaxer and traction therapy usage; (3) Baker’s lack of income
during years in which he was not seeking benefits, casting doubt on his motivation to
work; (4) Baker alleging crippling pain inconsistent with information from his 2009 MRI;
and (5) Dr. Armstrong’s belief Baker was a malingerer with respect to claimed
psychological impairment.

See id.

Baker asserts the ALJ improperly relied on

testimony taken out of context, specifically Baker’s comments concerning his use of
traction therapy. See Filing No. 19 - Brief p. 21. Even if this were true, the ALJ still
articulated numerous reasons for questioning Baker’s credibility, each of which were
25

supported by the record.10 Further, the ALJ factored in reports from various medical
professionals throughout Baker’s VA treatment history to calculate his RFC, even
explicitly recognizing Baker would need breaks throughout the day to accommodate his
condition. See AR. 16-17. Consequently, the ALJ’s decision not to find Baker credible
was supported by substantial evidence of record.
Baker’s argument the ALJ failed to consider his subjective complaints of pain
when making an RFC determination falls short as well. As discussed above, the record
clearly supports the ALJ’s finding Baker was incredible. Because Baker was incredible
and the record did not otherwise support his complaints of pain, the ALJ was not
required to assess the complaints.

E.

Baker’s Obesity
Baker asserts the ALJ erred by failing to assess Baker’s obesity and its effect on

his ability to perform physical activity within the work environment. See Filing No. 19 Brief p. 16, 17. Baker contends the ALJ briefly mentioned his obesity, but neglected to
consider SSR 02-1p regarding how to evaluate obesity. Id.
The ALJ is required to craft a claimant’s RFC based on the entirety of the record
evidence, accounting for limitations which could combine to create a disability.

20

C.F.R. §§ 404.1545, 416.945. ALJ’s are not required however, to account for every
theoretical combination of the claimant’s limitations; the ALJ needs only to assess the
record as a whole. See Barnes v. Social Sec. Admin., 171 F.3d 1181, 1183 (8th Cir.
1999) (affirming an ALJ’s conclusion the record as a whole did not suggest disability
stemming from a combination of impairments). Additionally, “Social Security Rulings
are agency rulings ‘published under the authority of the Commissioner of Social
Security and are binding on all components of the Administration.’” Sullivan v. Zebley,
493 U.S. 521, 530 n.9 (1990) (quoting 20 C.F.R. § 422.408 (1989)). Social Security
Rulings are not binding or conclusive on the courts, but they are entitled to deference to
the extent they are consistent with the Social Security Act and regulations. Minnesota
v. Apfel, 151 F.3d 742, 748 (8th Cir. 1998); Jones v. Barnhart, 335 F.3d 697, 703-04

10

In addition to those specifically mentioned by the ALJ, the record also indicates Dr. Newman had
reservations about whether Baker was feigning symptoms. See AR. 969.
26

(8th Cir. 2003) (“We generally give deference to the agency’s rulings on its own
regulations.”); see Ferguson v. Comm’r of Social Sec., 628 F.3d 269, 272 n.1 (6th
Cir. 2010). ALJ’s should make an assessment “of the effect obesity has upon the
individual’s ability to perform routine movement and necessary physical activity within
the work environment.” SSR 02-1p, p. 6. To demonstrate reversible error under SSR
02-1p, a claimant must specifically point to additional work-related limitations beyond
those accounted for by the ALJ. McNamara v. Astrue, 590 F.3d 607, 611-12 (8th Cir.
2010); see also Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (holding
claimant waived his right to argue obesity as a disabling factor when he “never alleged
any limitation in function as a result of his obesity in his application for benefits or during
the hearing”).
While obesity can impose significant work-related limitations, substantial
evidence from the record demonstrates the ALJ adequately accounted for Baker’s
obesity. First, the ALJ expressly noted his obligation to assess Baker’s obesity. See
AR. 15-16. Second, in his decision, the ALJ referenced Baker’s attempted and actual
weight loss, focusing specifically on Baker’s own statements and the reports of Drs.
Knosp and Reed. See AR. 19-21, 556-563, 643, 1050.

The ALJ also relied upon the

reports of other medical professionals who considered Baker’s weight. See AR. 17-18;
899, 979-80.
Further supporting the ALJ’s determination is the fact Baker never made mention
of his obesity ever affecting his ability to work at any of the four hearings before the
ALJ,11 nor did he argue it in his brief; a requirement for reversal clearly contemplated by
McNamara. Equally fatal to Baker’s argument, he made continual claims he was losing
weight as a result of exercising yet simultaneously asserted his symptoms either
persisted or worsened.

Accordingly, there is substantial evidence in the record

demonstrating Baker’s obesity was not a severe impairment on its own, or in
combination with other impairments. Also, the ALJ’s decision satisfactorily accounted
for Baker’s obesity as a part of his RFC construction.

11

During his first hearing before the ALJ, Baker acknowledged doctors suggested he lose weight in lieu of
undergoing surgery (AR. 133-134). Nevertheless, Baker still failed to explain how his obesity affected his
ability to work.
27

F.

VE Hypothetical
Baker contends the ALJ erred by providing the VE with an incomplete and

inaccurate hypothetical question. See Filing No. 19 - Brief p. 18, 19.
An ALJ’s hypothetical question to the VE constitutes substantial evidence when it
includes all the claimant’s credible impairments. Hulsey v. Astrue, 622 F.3d 917, 922
(8th Cir. 2010).

The ALJ may rely on vocational expert testimony as “substantial

evidence only when the testimony is based on a correctly phrased hypothetical question
that captures the concrete consequences of a claimant’s deficiencies.”

Robson v.

Astrue, 526 F.3d 389, 392 (8th Cir. 2010). The ALJ may omit alleged impairments from
the hypothetical question when the record does not support the claimant’s contention
the impairment is a significant restriction on performing gainful employment. Buckner
v. Astrue, 646 F.3d 549, 561 (8th Cir. 2011).
Baker argues when formulating a hypothetical to ask the VE, the ALJ failed to
account for the opinions of PA Davis and Dr. Witkowski. See Filing No. 19 - Brief p. 18,
19. Baker’s argument is fundamentally flawed however, because for the reasons set
forth above, the ALJ gave sufficient weight to Dr. Witkowski’s and PA Davis’ opinions
when fashioning Baker’s RFC.

The ALJ concluded Dr. Witkowski’s and PA Davis’

opinions were not supported by the record as a whole and crafted Baker’s RFC
accordingly. The ALJ asked the VE to consider a hypothetical claimant who could
perform tasks commensurate with Baker’s RFC. See AR. 54-55. The VE explained an
individual with identical abilities could perform Baker’s past work as a wholesale sales
representative, in some circumstances a circuit board supervisor, or alternatively, an
information clerk (AR. 57, 59). The ALJ’s RFC formulation is consistent with the record
as a whole and substantial evidence supports the ALJ’s conclusion. Accordingly, the
ALJ’s hypothetical question posed to the VE was accurate and complete.

CONCLUSION
For the reasons stated herein, the court concludes the ALJ’s decision, which
represents the final decision of the Commissioner of the SSA, is supported by

28

substantial evidence in the record as a whole and should not be reversed or remanded.
Accordingly, the Commissioner’s decision is affirmed.

IT IS ORDERED:
The Commissioner’s decision is affirmed, the appeal is denied, and judgment in
favor of the defendant will be entered in a separate document.

DATED this 22nd day of July, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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