Whiting v. Astrue
Filing
17
ORDER denying 11 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 3/12/13. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MICHAEL J. WHITING,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
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CIV. 12-5005-JLV
ORDER
INTRODUCTION
On December 17, 2009, Plaintiff Michael J. Whiting applied for
disability insurance benefits pursuant to Title II of the Social Security Act,
42 U.S.C. §§ 401-33 (2006). (Administrative Record, pp. 136-42).1 An
Administrative Law Judge (“ALJ”) held an evidentiary hearing on August 22,
2011. (AR, p. 21). At the administrative hearing, Mr. Whiting amended his
disability onset date to December 31, 2008. (AR, p. 24). Plaintiff
alleges he suffers from severe medical impairments including a cognitive
disorder, depression, an anxiety disorder, migraine headaches, and chronic
back pain and is disabled under the Social Security Act. (Docket 1 at ¶ 3).
On August 31, 2011, the ALJ concluded Mr. Whiting was not disabled and
he was denied benefits. (AR at pp. 5-20). The Appeals Council denied
1
The court will cite to information in the administrative record as “AR, p.
____.”
plaintiff’s request for review. Id. at pp. 1-4. The decision of the ALJ became
the final decision of the Commissioner.2 Id. Plaintiff timely filed his
complaint. (Docket 1).
The court issued a briefing schedule requiring the parties to file a
joint statement of material facts (“JSMF”). (Docket 9). If there were any
disputed facts, the parties were required to attach a separate joint
statement of disputed facts. Id. The parties filed their JSMF. (Docket 10).
Plaintiff then filed a motion for an order reversing the decision of the
Commissioner. (Docket 11). For the reasons stated below, the motion is
denied and the decision of the Commissioner is affirmed.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 10) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the
2
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Ms. Colvin is
automatically substituted for Michael J. Astrue as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
2
Commissioner’s decision to determine if an error of law was committed.
Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir.
2006) (internal citation and quotation marks omitted). Substantial evidence
is evidence that a reasonable mind might accept as adequate to support the
Commissioner’s decision. Choate, 457 F.3d at 869 (quoting Ellis v.
Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a decision to
deny disability benefits is “more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s decision
. . . [the court must also] take into account whatever in the record fairly
detracts from that decision.” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would have decided the case differently, it cannot reverse the
Commissioner’s decision if the decision is supported by good reason and is
based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the Commissioner’s
decision “ ‘merely because substantial evidence would have supported an
3
opposite decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)).
DISCUSSION
“Disability” is defined as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment [or combination of impairments] which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The
Social Security Administration established a five-step sequential evaluation
process for determining whether an individual is disabled. 20 CFR
§ 404.1520(a)(4). If the ALJ determines a claimant is not disabled at any
step of the process, the evaluation does not proceed to the next step as the
claimant is not disabled. Id. The five-step sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment–one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant
is disabled without regard to age, education, and work
experience); (4) whether the claimant has the residual functional
capacity to perform . . . past relevant work; and (5) if the claimant
cannot perform the past work, the burden shifts to the
Commissioner to prove there are other jobs in the national
economy that the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied
the five-step sequential evaluation required by the Social Security
4
Administration regulations. (Docket 10 at ¶ 2). At step five of the
evaluation, the ALJ found Mr. Whiting could perform jobs which exist in
significant numbers in the national economy and he was, therefore, not
disabled. Id. at ¶ 3.
PLAINTIFF’S ISSUES ON APPEAL
Plaintiff’s brief in support of his motion to reverse the decision of the
Commissioner identifies three issues. (Docket 12). Those are:
1.
The Commissioner’s finding that plaintiff’s subjective
complaints of symptoms and functional limitations
are not credible is not supported by substantial
evidence in that the Commissioner improperly
evaluated and discredited plaintiff’s subjective
complaints;
2.
The Commissioner’s unfavorable decision is not
supported by substantial evidence in that the
Commissioner improperly failed to grant controlling
weight to the treating psychiatrist’s assessment of
plaintiff’s functional restrictions; and
3.
The Commissioner erred in concluding that there are
jobs existing in significant numbers in the national
economy which plaintiff is capable of performing.
Id. Each issue will be addressed separately.
5
1.
THE COMMISSIONER’S FINDING THAT PLAINTIFF’S SUBJECTIVE
COMPLAINTS OF SYMPTOMS AND FUNCTIONAL LIMITATIONS
ARE NOT CREDIBLE IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE IN THAT THE COMMISSIONER IMPROPERLY
EVALUATED AND DISCREDITED PLAINTIFF’S SUBJECTIVE
COMPLAINTS
At step two of the evaluation process, the ALJ found Mr. Whiting had
“severe impairments: cognitive disorder NOS3 secondary to mild traumatic
brain injury; depression disorder NOS; and generalized anxiety disorder
. . . .” (Docket 10 at ¶ 3). “At step three, the ALJ found that Whiting did not
have an impairment that met or medically equaled an impairment listed at
20 C.F.R. pt. 404, subpt. P, app. 1 . . . .” Id. In step four, the ALJ
discounted Mr. Whiting’s testimony. (AR at p. 18). “After careful
consideration of the evidence, the undersigned finds that the claimant’s
medical[] statements concerning the intensity, persistence and limiting
effects of [the claimed disabilities of anger issues, short-term memory
problems, migraine headaches, and back issues] are not credible and are
not supported by the treating records, the reviewing DDS4 opinions, and the
medical opinion given greatest weight.” Id.
3
Not Otherwise Specified.
4
Disability Determination Services. (AR at p. 12).
6
Plaintiff objects, asserting the ALJ failed to properly consider Mr.
Whiting’s subjective allegations under the Polaski5 standards. (Docket 12 at
pp. 3-4). Under plaintiff’s application of the Polaski standards, “the ALJ
improperly evaluated and discounted Whiting’s subjective allegations.” Id.
at p. 4.
“The ALJ was required to make an express credibility determination
explaining why he did not fully credit [claimant’s] complaints.” Lowe v.
Apfel, 226 F.3d 969, 971 (8th Cir. 2000). That finding must be “adequately
explained and . . . supported by the record as a whole.” Id. at p. 972. 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.” Id. The ALJ made no
specific findings regarding the Polaski factors. However, “[t]he ALJ is not
required to discuss each Polaski factor as long as the analytical framework
is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781, 783 (8th
Cir. 2004).
5
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (To assess a
claimant’s credibility, the ALJ must consider all of the evidence, including prior
work records and observations by third parties and doctors regarding daily
activities, the duration, frequency, and intensity of pain, precipitating and
aggravating factors, the dosage, effectiveness, and side effects of medication,
and functional restrictions.).
7
“At the hearing, the claimant testified he is disabled due to anger
issues, short term memory problems, migraine headaches, and back
issues.” (AR at p. 17; see also Docket 10 at ¶ 48). For each of the four
areas of Mr. Whiting’s claimed disabilities, the ALJ found inconsistencies
between the record and Mr. Whiting’s testimony.
Back Pain
“Claimant testified he experiences daily back pain at a 3 to 4 pain
level usually, but sometimes worse. He indicated long periods of standing,
walking, and lifting, and not sleeping right can worsen the pain. . . .
Claimant asserted spondylolisthesis at L4-5 and Sl prevented him from
working . . . .” (AR at p. 11). This testimony is contradicted by the ALJ’s
findings:
1.
2.
[T]he record lacks objective medical findings to
support such pain and limits secondary to back pain.
Id.
3.
VA records note there is no medical imaging (CT scan)
nor objective findings to support the severity and
frequency of the lumbar pain the claimant asserted
. . . . Id.
4.
6
He stated he can walk 1/2 to 1 mile at a time, stand
1/2 hour at a time, sit 1 to 1-1/2 hour [sic] at a time,
and lift a maximum of 30 to 40 pounds. Id.
[Two of the C & P6] examinations reflect claimant’s
poor effort on examination, with claimant’s
VA Compensation and Pension. (AR at p. 10).
8
complaints “far”
observed. Id.
exceeding
what
was
actually
5.
[C]laimant’s lack of medication use for back pain
other than Ibuprofen, and lack of medical treatment
for the alleged pain. Id.
6.
No treating or examining physician has assessed
claimant with limits related to back pain, and per the
reviewing DDS physician, the claimant has no
exertional limits. Id.
The ALJ’s findings “adequately explain[]” the decision to reject Mr.
Whiting’s testimony concerning the severity of any back pain and those
findings are “supported by the record as a whole.” Lowe, 226 F.3d at 97172.
Short Term Memory Loss
The ALJ acknowledged Mr. Whiting suffered “a traumatic brain injury
(TBI) from a fall . . . while serving in the US. Navy.” (AR at p. 13). For this
disability, Mr. Whiting was “receiving a monthly VA disability pension
($1,000) at approximately 40% for migraine headaches and back pain, and
has expressed anger and dissatisfaction with VA over not increasing his
pension due to the TBI.” Id. at 18. Because of Mr. Whiting’s frustration
with the VA benefits program, the ALJ found Mr. Whiting “has strong
financial incentive to exaggerate his report of the severity and frequency of
his symptoms, and . . . limitation of function.” Id.
9
But more important to Mr. Whiting’s claim, the ALJ found the record
to be unsupportive of short term memory loss:
1.
“Mental status examination observations [July 22, 2009] noted
a dysthymic/agitated mood with congruent affect but no short
or long term memory problems. Thought content was focused
on negative life struggles, but there was no other observation of
mental difficulties or abnormalities.” (AR at pp. 13-14).
2.
During an “August 18, 2009 session with Dr. Keohane . . .
claimant . . . reported he had been off psychotropic medications
for 6 months . . . . [but during] an August 24, 2009 VA
psychiatric evaluation by C. Haas, MD . . . Claimant stated he
had been on and off Citalopram over the past few years, but
restarted it 8 months earlier and had been taking it daily since
then, or at least fairly regularly since he forgot sometimes. . . .
This is inconsistent with his report to Dr. Keohane 6 days
earlier . . . and diminishes the credibility of his reports to all
practitioners.” Id. at p. 14.
3.
During the August 24 evaluation with Dr. Haas, “[c]laimant
asserted symptoms including depression, isolation, occasional
disturbed sleep, diminished appetite for 6 months, diminished
energy, hopelessness, helplessness, guilt, and anhedonia.
However, he reported his concentration was fine.” Id.
4.
Also during the August 24 evaluation, “[m]ental status
examination observations noted complacent mood . . . restricted
affect, and thought processes that were logical, sequential, goal
directed. Thought content was negative for abnormalities.
Cognition was 3/3 immediately, 1/3 at 5 minutes, and claimant
was aIert and oriented times 4, with appropriate judgment.” Id.
5.
On October 26, 2009, Dr. Haas “noted euthymic mood and full
affect, with no other significant problems.” Id.
6.
In the TBI clinic record of May 26, 2010, Mr. Whiting’s “ ‘main
concern’ was not getting service connected disability for his
reported TBI, and he asserted continued memory problems. . . .
The doctor referenced prior neuropsychological testing that
showed mild to moderate cognitive impairments, but such
10
testing is not evidenced in the record, and new testing was
advised.” Id. at p. 15.
7.
During a September 23, 2010, session with Dr. Haas, Mr.
Whiting stated “he had . . . missed repeat neuropsychological
testing earlier in September 2010, because he didn’t have gas
money. This indicates claimant does not miss appointments
only due to his report that he forgets them.” Id. at pp. 15-16.
8.
During that same session, Dr. Haas found Mr. Whiting “was
fully alert and oriented, and was negative for any indication of
concentration problems, noting claimant’s thought process was
logical, sequential, and goal directed.” Id. at p. 16.
9.
On November 18, 2010, Mr. Whiting reported to a speech
pathology consultant that “he spent most of his time playing an
internet game called ‘World of War Craft’ . . . . This does not
support the degree of concentration problems that claimant has
asserted.” Id.
10.
A “Neurobehavioral Cognitive Status Examination . . .
administered by speech-language pathology [sic] during the
consult, revealed mild to moderate memory deficits as the only
deficit, with all other areas noted as in the average range.” Id.
11.
During a March 23, 2011, appointment, Dr. Haas “indicated
claimant had a depressed mood, consistent with claimant’s
description, and restricted affect. However, no other significant
observations were noted on mental status examination.” Id. at
p. 17.
12.
The ALJ noted Dr. Haas’s opinion Mr. Whiting was “able to
manage benefits in his own interest . . . .” is inconsistent with
any finding of a memory or concentration deficiency. Id.
13.
Dr. Pelc, a consulting expert, testified Mr. Whiting’s “mental
status examinations were within normal limits. . . . [and] Dr.
Pelc’s opinion is consistent with the treating records and the
record as a whole.” Id.
14.
“[I]n the VA C&P examinations for migraines and back pain,
claimant asserted the inability to work due to migraine
11
headaches and back pain, but not due to any mental
impairment.” Id. at p. 18.
15.
“Cognitive testing also does not support claimant’s assertion of
such severe memory limits, with testing noting only mild to
moderate memory deficits . . . .” Id.
The ALJ’s findings “adequately explain[]” the decision to reject Mr.
Whiting’s testimony concerning his claim of short term memory loss and
those findings are “supported by the record as a whole.” Lowe, 226 F.3d at
971-72.
Migraine Headaches
Mr. Whiting “testified to migraine headaches that occur 2 to 3 times
per week or more, during which he is really sensitive to light and sound and
has a pain level at 8 to 9. He stated the headaches typically last 2 to 3
hours, but can last up to 5 days, and he has to take medication and stay in
a dark room and relax until it’s over, after which he has to sleep for 5 to 6
hours.” (AR at p. 10; see also Docket 10 at ¶ 48). Mr. Whiting claimed “no
migraine treatment has worked . . . .” (AR at p. 11).
The ALJ discounted Mr. Whiting’s complaints regarding the severity of
the migraine headaches for the following reasons:
1.
[The] Rapid City Regional Hospital ER records . . .
largely show claimant’s migraine headaches quickly
resolve with narcotic medications. Id.
2.
A July 2008 brain MRI was negative for objective
findings. Id.
12
3.
No treating or examining medical source has
assessed claimant with ongoing limitations related to
migraine headaches. Id.
4.
[O]ther than the annual [VA Compensation and
Pension] examination, there is no evidence of ongoing
treatment for headaches. Id.
5.
The record lacks evidence to support the ongoing
frequency and severity of migraines the claimant
testified to. Id.
6.
[T]he degree of medical treatment does not support
this level of severity. (AR at p. 11).
7.
[Mr. Whiting] has strong financial incentive to
exaggerate his report of the severity and frequency of
his symptoms, and . . . limitation of function. Id. at
18.
The ALJ’s findings “adequately explain[]” the decision to reject Mr.
Whiting’s testimony concerning the severity of the migraine headaches and
those findings are “supported by the record as a whole.” Lowe, 226 F.3d at
971-72.
Anger Issues
“Claimant testified to anger episodes during which he goes into a rage
and needs to be away from people. He stated he can get angry for no
apparent reason, and the anger lasts 4 to 5 hours. He stated he sometimes
becomes violent, and has broken his hand from punching things.7 Claimant
7
The ALJ acknowledged the one episode when Mr. Whiting became angry
with his mother, walked away from the argument, and then fractured three
fingers by punching the floor of his camper. (AR at pp. 16 & 18).
13
stated when he was working, he had problems with his coworkers and lost
some friend[s] because they don’t understand he has to be alone.” (AR at p.
17).
The ALJ concluded Mr. Whiting’s testimony regarding the severity of
his anger issues was overstated. The reasons articulated by the ALJ
include:
1.
Mr. Whiting reported to the C&P examiner his inability to work
was due to migraine headaches and back pain, with no mention
of anger issues. Id. at p. 18. A similar declaration was made to
Dr. Keohane in July of 2009. Id. at p. 13. Yet, Mr. Whiting
claimed anger management was his biggest problem. Id.
2.
Psychiatric records show no history of violence. Id. at 18.
3.
“[T]he treating records . . . show claimant typically walks away
from a situation [in which he becomes angry].” Id.
4.
Mr. Whiting’s participation in a group anger management
program was the only treatment program. Id. at 13.
5.
“Diagnoses were cognitive disorder NOS, and major depressive
disorder recurrent and moderate possibly secondary to the
cognitive disorder.” (AR at p. 14).
6.
Mr. Whiting “has strong financial incentive to exaggerate his
reports of the severity and frequency of his symptoms, and . . .
limitation of function.” Id. at 18.
The ALJ’s findings “adequately explain[]” the decision to reject Mr.
Whiting’s testimony concerning the severity of claimant’s anger and its
affect upon his life and those findings are “supported by the record as a
whole.” Lowe, 226 F.3d at 971-72.
14
The ALJ properly considered Mr. Whiting’s subjective complaints and
found they were not credible in light of the entire record. Gonzales v.
Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). The court is to “defer to an
ALJ’s credibility finding as long as the ALJ explicitly discredits a claimant’s
testimony and gives a good reason for doing so.” Schultz v. Astrue, 479
F.3d 979, 983 (8th Cir. 2007) (internal citation and quotation marks
omitted).
2.
THE COMMISSIONER’S UNFAVORABLE DECISION IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE IN THAT THE
COMMISSIONER IMPROPERLY FAILED TO GRANT CONTROLLING
WEIGHT TO THE TREATING PSYCHIATRIST’S ASSESSMENT OF
PLAINTIFF’S FUNCTIONAL RESTRICTIONS
“A treating physician’s opinion is given controlling weight if it is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.”
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (citation and internal
quotation marks omitted). However, “while entitled to special weight,
it does not automatically control, particularly if the treating physician
evidence is itself inconsistent.” Id. (citations and internal quotation marks
omitted). If the treating physician’s opinion is not given controlling weight
under 20 CFR § 404.1527(d)(2), it must be weighed considering the factors
in 20 CFR §§ 404.1527(d)(2)-(6). See Shontos v. Barnhart, 328 F.3d 418,
426 (8th Cir. 2003) (“Where controlling weight is not given to a treating
15
source’s opinion, it is weighed according to the factors enumerated . . . .”).
The ALJ must “ ‘give good’ reasons for discounting a treating physician’s
opinion.” Dolph v. Barnhart, 308 F.3d 876, 878-79 (8th Cir. 2002).
In large part, Dr. Haas’ main interaction with Mr. Whiting was to
monitor and adjust his medications for anxiety and depression. See Docket
10 at ¶¶ 18, 20, 22, 24, 26, 27, 34, 40, and 43. Dr. Haas did not perform
any objective testing and relied primarily on Mr. Whiting’s statements
regarding the fluctuation in his anxiety and depression. Id. In rejecting Dr.
Haas’ Medical Source Statement of Ability to Do Work-Related Activities, the
ALJ found the findings of “marked” and “extreme” as “simply not supported
by treating VA records . . . including Dr. Haas’ own records.” (AR at p. 17).
There was no “documented testing conducted by Dr. Haas” and the cognitive
functioning testing performed by the VA speech-language pathologist “only
partially supported . . . ‘mild to moderate memory deficits’ . . . .” Id. The
ALJ noted Dr. Haas’ findings of marked or extreme limitations on Mr.
Whiting’s mental ability to perform work activities is “incongruous with” the
doctor’s recommendation that Mr. Whiting was “able to manage benefits in
his own best interest . . . .” Id.
The ALJ is free to accept those opinions of a treating physician which
are supported by the medical evidence and plaintiff’s own testimony. See
House, 500 F.3d at 744-46. “[W]hen a treating physician’s opinions are
16
inconsistent [with] . . . the medical evidence as a whole, they are entitled to
less weight.” Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002)
(citations omitted).
When opinions of a consulting psychologist conflict with opinions of a
treating psychologist, the ALJ must resolve the conflict. Wagner v. Astrue,
499 F.3d 842, 849 (8th Cir. 2007). The ALJ performed the comparison,
resolved the conflict, and justified his opinion accepting the opinions of Dr.
Pelc over the opinions of Dr. Haas. (AR at p. 17). The ALJ gave the
“greatest weight to the opinion of medical expert Dr. Pelc, who testified
claimant can understand, remember, and perform simple tasks, and would
not be precluded from all contact with others.” Id. “Dr. Pelc . . . indicated
the record of evidence did not reflect any description of significant limits in
claimant’s activities of daily living, and despite some reports of irritability,
claimant maintained his family relationships, participated in group
treatment (noted as cooperative), and was communicative and interactive
with treating sources. . . . the mental status examinations were within
normal limits.” Id. The ALJ also found “Dr. Pelc’s opinion is consistent with
the treating records and the record as a whole. . . .[and] [t]he reviewing DDS
reviewing medical opinions are essentially consistent with Dr. Pelc’s
opinion.” Id.
17
The ALJ gave good reasons for not assigning controlling weight to Dr.
Haas’ opinion and discounting his opinions concerning Mr. Whiting’s mental
capacity to perform work-related functions. Dolph, 308 F.3d at 878-79. It
is not the role of the court to re-weigh the evidence and it cannot reverse the
Commissioner’s decision as the decision is supported by good reason and is
based on substantial evidence. Guilliams, 393 F.3d at 801.
3.
THE COMMISSIONER ERRED IN CONCLUDING THAT THERE ARE
JOBS EXISTING IN SIGNIFICANT NUMBERS IN THE NATIONAL
ECONOMY WHICH PLAINTIFF IS CAPABLE OF PERFORMING
At step four of the evaluative process, the ALJ found Mr. Whiting had
“the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: [t]he
claimant is capable of understanding, remembering, and carrying out one to
two step instructions. He is limited to occasional contact with coworkers,
supervisors, and the general public.” (AR at p. 13). Mr. Whiting objects to
this RFC arguing “[t]he frequency and severity of Whiting’s migraine
headaches, coupled with the anger episodes during which Whiting must
segregate himself from people and any situations that are going to aggravate
his anger, preclude fulltime employment.” (Docket 12 at p. 22). “[T]he only
residual-functional-capacity assessment that is supported by the record is
that Whiting cannot perform any substantial gainful activity, as he cannot
maintain the attendance requirements of full time competitive employment.
Whiting is disabled.” Id. at p. 23 (citation and bracketing omitted).
18
The ALJ concluded Mr. Whiting was “unable to perform past relevant
work.” (AR at p. 18). The ALJ acknowledged in establishing a RFC for Mr.
Whiting, “[t]he claimant’s ability to perform work at all exertional levels has
been compromised by nonexertional limitations.” Id. Rejecting Mr.
Whiting’s testimony concerning the severity of his nonexertional limitations,
the ALJ accepted Dr. Pelc’s opinions “that Whiting had moderate
restrictions in his ability to interact appropriately with the public, interact
appropriately with supervisors, interact appropriately with co-workers, and
respond appropriately to usual work situations and to changes in a routine
work setting . . . [and] that Whiting could cognitively perform simple tasks
with one and two step operations . . . . [and] could psychologically handle
occasional contact with other people . . . .” (Docket 10 at ¶ 46). In
accepting Dr. Pelc’s testimony, the ALJ also discounted and gave less weight
to the DDS reviewing medical opinions which concluded Mr. Whiting “might
also have the ability to do some more complex tasks . . . .” (AR at p. 17).
The ALJ’s RFC determination is supported by good reason and is based on
substantial evidence. Guilliams, 393 F.3d at 801.
“The hypothetical question posed to the vocational expert must
capture the concrete consequences of [the] claimant’s deficiencies.”
Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001) (internal quotation
marks and citation omitted). “Likewise the ALJ may exclude any alleged
impairments . . . properly rejected as untrue or unsubstantiated.” Id. The
19
ALJ asked the vocational expert a hypothetical question tied to Mr.
Whiting’s RFC and then followed up with another hypothetical question.
(Docket 10 at ¶ 53; see also AR at p. 19). Both hypothetical workers having
Mr. Whiting’s nonexertional limitations “would be able to perform the
requirements of representative occupations . . . in the U.S. economy and . . .
in the region.” (AR at p. 19).
The ALJ’s finding of Mr. Whiting’s RFC is supported by substantial
evidence. The hypothetical questions and the vocational expert’s answers to
both hypothetical questions constitute substantial evidence supporting the
ALJ’s determination Mr. Whiting was not disabled. Lacroix v. Barnhart, 465
F.3d 881, 889 (8th Cir. 2006). The ALJ’s decision is free of reversible error.
Smith, 982 F.2d at 311.
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 11) is denied.
IT IS FURTHER ORDERED that judgment be entered in favor of
Acting Commissioner Carolyn W. Colvin and against plaintiff Michael J.
Whiting.
Dated March 12, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
20
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