Cummings v. Colvin

Filing 25

ORDER denying 16 Motion to Reverse; granting 22 Motion to Affirm. Signed by Chief Judge Jeffrey L. Viken on 3/24/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DALE K. CUMMINGS,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIV. 13-5014-JLV

ORDER

INTRODUCTION
Plaintiff Dale K. Cummings filed a complaint appealing from an
administrative law judge’s (“ALJ”) decision denying disability benefits. (Docket
1). Defendant denies plaintiff is entitled to benefits. (Docket 9). The court
issued a briefing schedule requiring the parties to file a joint statement of
material facts (“JSMF”). (Docket 11). The parties filed their JSMF. (Docket 15).
For the reasons stated below, plaintiff’s motion to reverse the decision of the
Commissioner (Docket 16) is denied and defendant’s motion to affirm the
decision of the Commissioner (Docket 22) is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 15) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
On January 20, 2011, plaintiff Dale K. Cummings applied for social
security disability benefits alleging a disability onset date of September 18, 2009.

(Docket 15 at ¶ 1). The claims were denied initially on March 18, 2011, and on
reconsideration on July 29, 2011. Id. at ¶¶ 3, 5. Mr. Cummings filed a request
for a hearing on August 22, 2011, and a hearing was held on February 13, 2012.
Id. at ¶¶ 6, 11. Id. On April 26, 2012, the ALJ issued a decision finding Mr.
Cummings was not disabled and denying benefits. Id. at ¶ 11; see also
Administrative Record, pp. 9-19.1 Mr. Cummings subsequently sought review
from the Appeals Council and on December 11, 2012, the Appeals Council
denied the request for review. (Docket 15 at ¶ 12). Mr. Cummings then filed a
complaint requesting judicial review. (Docket 1). The ALJ’s decision constitutes
the final decision of the Commissioner of the Social Security Administration. It
is from this decision which Mr. Cummings timely appeals.
This issue before the court is whether the ALJ’s decision of April 26, 2012,
(the “2012 ALJ decision”) that Mr. Cummings was not “under a disability, as
defined in the Social Security Act, from September 18, 2009, through [April 26,
2012]” is supported by the substantial evidence on the record as a whole. (AR at
p. 19); see also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By
statute, the findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.”) (internal quotation
marks and brackets omitted) (citing 42 U.S.C. § 405(g)).

1

The court will cite to information in the administrative record as “AR at p.
___.”

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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); Howard, 255 F.3d at 580. The
court reviews the 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).
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 decide the case differently, it cannot reverse the Commissioner’s
decision if that 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

3

evidence would have supported an 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 that 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 Administration

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regulations. (AR at pp. 11-19). At step five of the evaluation, the ALJ found
there were jobs that existed in significant numbers in the national economy that
Mr. Cummings could perform, and he was, therefore, not disabled. Id. at pp. 1819.
A.

PLAINTIFF’S ISSUES ON APPEAL
Mr. Cummings identifies the following issues: (1) the ALJ failed to identify

“severe” impairments at step two of the sequential evaluation; (2) the ALJ failed
to properly develop the record; (3) the ALJ failed to properly assess Mr.
Cummings’ credibility; (4) the ALJ failed to properly weigh the opinion evidence;
and (5) the ALJ improperly assessed Mr. Cummings’ residual functional capacity.
The court will discuss each issue in turn.
1. Whether the ALJ failed to identify all of Mr. Cummings’ severe
impairments.
The ALJ found Mr. Cummings has the following severe impairments:
coronary artery disease status post small myocardial infarction and stent, and
status post fractured tibia. (AR at p. 11). The ALJ acknowledged Mr. Cummings’
alleged disability due to diabetes, but found “[h]e has had [this] condition since
[the] age of 12 and has worked in the past at the level of substantial gainful
activity . . . [and there was] no evidence that his condition ha[d] worsened to
suggest that it would now have more than minimal impact on his ability to
perform work related activity.” Id.

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The ALJ found Mr. Cummings’ “medically determinable mental impairment
of depression, not otherwise specified, [did] not cause more than minimal
limitation in [his] ability to perform basic mental work activities and [was]
therefore nonsevere.” Id. at p. 12. In making this finding, the ALJ “considered
the four broad functional areas set out in the disability regulations for evaluating
mental disorders and in section 12.00C of the Listing Impairments.” Id. The
ALJ adopted the State Agency psychological expert’s opinion, which concluded
plaintiff did not have limitations in activities of daily living, social functioning,
concentration, persistence or pace, and had no episodes of decompensation of
extended duration. Id. The ALJ found the record did not contain “significant
limitations due to psychological issues.” Id.
The ALJ noted Mr. Cummings’ alleged disability due to attention deficit
disorder, but remarked Mr. Cummings had “no documented diagnosis or
treatment for such condition.” Id.
Mr. Cummings argues the ALJ should have found his diabetes was severe.
Mr. Cummings contends his diabetes was longstanding and poorly controlled
and had more than a minimal impact on his ability to perform basic work
activities. (Docket 17 at p. 35). Mr. Cummings asserts the ALJ’s conclusion his
depression was not severe was not supported by substantial evidence. Id. at p.
36.

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“It is the claimant’s burden to establish that his impairment or
combination of impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th
Cir. 2007). A severe impairment is defined as one which significantly limits a
physical or mental ability to do basic work activities. 20 CFR § 404.1521. An
impairment is not severe, however, if it “amounts only to a slight abnormality
that would not significantly limit the claimant’s physical or mental ability to do
basic work activities.” Kirby, 500 F.3d at 707. “If the impairment would have no
more than a minimal effect on the claimant’s ability to work, then it does not
satisfy the requirement of step two.” Id. (citation omitted). Additionally, the
duration requirement must be met. The impairment must have lasted at least
twelve months or be expected to result in death. See 20 CFR § 404.1509.
The court finds there is ample evidence in the record to support the ALJ’s
conclusion that Mr. Cummings’ diabetes and depression were not severe. Mr.
Cummings had diabetes since he was twelve years old. (Docket 15 at ¶ 25).
Despite dealing with his type 1 diabetes on a daily basis, Mr. Cummings was
able to work for Merrillat Industries for 25 years operating various machinery.
Id. at ¶¶ 19, 22. His job with Merrillat ended when the plant was sold in 2009.
Id. at ¶ 19. Although the record indicates Mr. Cummings’ diabetes was
uncontrolled or poorly controlled, the record reflects Mr. Cummings admitted on
several occasions to not taking his medication or checking his levels on a
consistent basis. Id. at ¶¶ 117, 119, 170, 179, 184, 189, 243. His treating

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physicians often had to remind him to take his insulin medication on a regular
basis and to consistently check his blood sugars. Id. at ¶¶ 170, 184, 189, 197,
200, 227. The record indicates Mr. Cummings’ insulin dosage generally
remained the same, but doctors encouraged Mr. Cummings to check his levels
more often. Id. at ¶¶ 153, 197, 227, 235, 238, 243. Mr. Cummings did on
occasion increase the insulin dosage on his own. Id. at ¶¶ 247, 256. Mr.
Cummings’ treating physicians consistently found, on examination, that he had
full strength, normal gait, normal sensation, no lesions and no deformities. Id.
at ¶¶ 172, 196, 237, 243, 244; see also AR at p. 579). Mr. Cummings testified he
was able to keep his blood sugar at appropriate levels by exercising and resting
when needed and was trying to manage his blood sugars without insulin.
(Docket 15 at ¶¶ 40, 42).
Mr. Cummings’ daily activities also are consistent with the ALJ’s finding
that Mr. Cummings’ diabetes had not significantly deteriorated. Mr. Cummings
played his guitar for a couple of hours per day, spent time teaching his grandson
to play the guitar, and performed significant activities using his hands. Id. at
¶¶ 40, 98, 161, 165, 202, 244).
Based on the medical records, the ALJ did not err in concluding Mr.
Cummings’ diabetes was nonsevere. Rather, the evidence supports a finding
diabetes did not significantly limit his physical or mental ability to do basic work
activities.

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Mr. Cummings argues the ALJ erred in finding his anxiety and depression
were not severe impairments. The record in this case indicates Mr. Cummings
was diagnosed with depression and has been treated with antidepressants and
anti-anxiety medication since August 1998. Id. at ¶¶ 121, 138, 149-50. Since
August 1998, Mr. Cummings worked for Merrillat Industries and did so until the
plant was sold in 2009. Id. at ¶ 19. Mr. Cummings testified his antidepressant
medications were helping to control his depression. Id. at ¶ 34, 95.
Mr. Cummings alleges he suffered from attention deficit disorder and
claims a doctor told him as a young child that he suffered from attention deficit
disorder. (Docket 15 at ¶ 93, 95, 103). However, the record does not reflect Mr.
Cummings was ever treated for attention deficit disorder nor does it indicate any
type of limitation related to attention deficit disorder. Mr. Cummings admits he
never took medication to treat attention deficit disorder. Id. at ¶ 95. Mr.
Cummings did not carry his burden to show that his attention deficit disorder
was severe.
Dr. Atkins, a State Agency Psychologist, opined Mr. Cummings had no
limitations in activities of daily living, social function, concentration, persistence
or pace, and no episodes of decompensation. (AR at p. 12). Mr. Cummings
argues the ALJ erred in relying on Dr. Atkins’ opinions because his “opinion was
based upon absence of evidence.” (Docket 17 at p. 37). Despite this argument,
Mr. Cummings bears the burden of establishing his impairments or combination

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of impairments are severe. Kirby, 500 F.3d at 707. Mr. Cummings failed to
produce evidence establishing he experienced functional limitations due to
anxiety, depression, or attention deficit disorder. Despite these impairments, the
record indicates Mr. Cummings was not significantly limited in his physical or
mental ability to do basic work activities. The record reflects essentially normal
mental status examinations. (Docket 15 at ¶¶ 172, 187, 196). The court finds,
based on a review of the record, the ALJ’s conclusion Mr. Cummings’ mental
impairments caused no limitation in daily activities, social functioning, or
concentration, persistence, or pace is supported by substantial evidence. As a
result, the court finds the ALJ did not err at step two of the sequential
evaluation.
2. Whether the ALJ properly developed the record.
Mr. Cummings argues the ALJ erred by relying on Dr. Atkins’ opinion his
depression, anxiety, and attention deficit disorder were nonsevere impairments.
(Docket 17 at pp. 36-38). Dr. Atkins based his opinion upon finding “no specific
significant limitations documented secondary to his depression or his anxiety in
the record.” (Docket 15 at ¶ 17). Mr. Cummings argues Dr. Atkins’ opinion is
based on a lack of evidence and therefore the “ALJ was required to order a
psychological consultative evaluation” to completely develop the record. (Docket
17 at pp. 37-38). The court disagrees. “It is true that an ALJ has a duty to
develop the record fully.” Haley v. Massanri, 258 F.3d 742, 749 (8th Cir. 2001)

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(citing McGee v. Harris, 683 F.2d 256, 260 (8th Cir. 1982)). “ ‘It is reversible
error for an ALJ not to order a consultative examination when such an
evaluation is necessary for him to make an informed decision.’ ” Boyd v.
Sullivan, 960 F.2d 733, 736 (8th Cir. 1992) (quoting Reeves v. Heckler, 734 F.2d
519, 522 n. 1 (11th Cir. 1984)).
There was substantial evidence in the record to allow the ALJ to make an
informed decision in this case. The medical reports from treating and examining
physicians indicate Mr. Cummings’ depression and anxiety were controlled by
medication. Mr. Cummings told his treating physician that medication helped to
“mellow[] him out.” (Docket 15 at ¶ 34). Although numerous medical records
are included in the record, those materials do not indicate Mr. Cummings
suffered functional limitations as a result of depression, anxiety, or attention
deficit disorder. The record contained substantial evidence to support the ALJ’s
decision. See Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (“An ALJ is
permitted to issue a decision without obtaining additional medical evidence so
long as other evidence in the record provides a sufficient basis for the ALJ’s
decision”) (internal quotation marks omitted). Furthermore, “reversal due to
failure to develop the record is only warranted where such failure is unfair or
prejudicial.” Shannon v. Chater, 54, F.3d 484, 488 (8th Cir. 1995) (internal
quotation marks omitted) (quotation omitted). Mr. Cummings made no such

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showing. Therefore, the ALJ did not err in failing to send the claimant for a
consultative examination.
3. Whether the ALJ properly assessed Mr. Cummings’ credibility.
Mr. Cummings argues the ALJ’s credibility determinations are not
supported by the record. (Docket 17 at pp. 38-45). Defendant contends the ALJ
properly considered the record, noted inconsistencies and gave good reasons for
his credibility assessment. (Docket 23 at pp. 12-20).
The ALJ determines the weight attributable to a claimant’s subjective
complaints, including pain, according to the framework created in Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Five Polaski factors guide the
ALJ’s credibility determinations: “1) the claimant’s daily activities; 2) the
duration, frequency, and intensity of the pain; 3) the dosage, effectiveness, and
side effects of medication; 4) precipitating and aggravating factors; and
5) functional restrictions.” Choate, 457 F.3d at 871. The ALJ need not
mechanically discuss each of the Polaski factors. See Goff v. Barnhart, 421 F.3d
785, 791 (8th Cir. 2005). Although the ALJ can discount a claimant’s subjective
complaints for inconsistencies within the record as a whole, “the ALJ must make
express credibility findings and explain the record inconsistencies that support
the findings.” Dolph v. Barnhart, 308 F.3d 876, 879 (8th Cir. 2002). The court
will not disturb the decision of an ALJ who seriously considers, but for good

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reason expressly discredits a claimant’s subjective complaints. See Haggard v.
Apfel, 175 F.3d 591, 594 (8th Cir. 1999).
The ALJ noted Mr. Cummings suffered from “coronary artery disease
status post small myocardial infarction and stent, and status post fractured
tibia.” (AR at p. 11). The ALJ noted Mr. Cummings’ alleged depression, anxiety,
and attention deficit disorder. Id. at p. 12. The ALJ concluded Mr. Cummings’
“medically determinable impairments could reasonably be expected to cause the
alleged symptoms . . . however, [Mr. Cummings’] statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
extent they [were] inconsistent with [the] residual functional capacity
assessment.” Id. at p. 15. The ALJ recognized Mr. Cummings’ “impairments
may cause him some discomfort and pain” but that it did not rise to the level of
precluding Mr. Cummings from substantial gainful employment. Id.
In this case, the ALJ acknowledged the analytical framework for credibility
determinations and stated he had “considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements of
20 CFR 404.1529 and SSRs 96-4p and 96-7p.” (AR at p. 13).
After reviewing the record in this case, the court finds the ALJ’s credibility
determination is support by substantial evidence in the record as a whole. The
ALJ noted Mr. Cummings gave conflicting reports regarding why he stopped

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working. He alleged he stopped working at the Merrillat Industries plant due to
his medical conditions, but also reported he worked until the plant was sold in
September of 2009 when he then became unemployed. Mr. Cummings argues
the ALJ erred by considering the fact he worked at levels below substantial
gainful activity following September 2009. While this factor alone is not
indicative of Mr. Cummings’ credibility, it is a factor the ALJ appropriately
considered because it occurred during a time period Mr. Cummings alleged he
was totally disabled. 20 CFR § 404.1529(c)(3) (the ALJ can consider prior work
records when assessing credibility).
The ALJ noted Mr. Cummings and his mother provided inconsistent
statements regarding Mr. Cummings’ daily activities. Id. at p. 14. Mr.
Cummings noted he needed help with showering and getting dressed, was
unable to tolerate extreme heat or cold, and was unable to prepare his own
meals. Id. Mr. Cummings also alleged he suffered from stiff hands and had
neuropathy in his arms and feet. Id. Mr. Cummings’ mother’s assessment
indicated he had no problems living independently or caring for his personal
hygiene, was able to help with chores, handle his personal finances, and drive a
car. Id.; see also Casey v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007) (holding ALJ
properly found claimant’s statements not credible where the statements were
inconsistent with his mother’s statements regarding his abilities); Medhaug v.
Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (noting “acts such as cooking,

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vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.”).
The ALJ found Mr. Cummings’ alleged limitations were inconsistent with
other evidence in the record. Although Mr. Cummings alleged he suffered from
neuropathy and had stiff hands, he played the guitar for two hours a day and
was able to perform vehicle and home repairs, including pulling the engine from
a motorcycle. (Docket 15 at ¶¶ 40, 161, 165, 202, 243). These activities are
inconsistent with Mr. Cummings’ testimony regarding his limitations. The ALJ’s
credibility determination also is supported by Mr. Cummings’ essentially normal
physical examinations. Id. at ¶¶ 172, 182, 184, 187, 196, 200, 225, 234, 237,
243, 244.
The ALJ found Mr. Cummings’ limitations regarding his blood sugars were
not fully credible. Mr. Cummings testified he had trouble controlling his blood
sugars. However, the record is clear as discussed above, Mr. Cummings did not
always use his insulin medication or consistently check his blood sugars, and
was reminded by his physician on numerous occasions to take his insulin on a
consistent basis. Mr. Cummings also testified he was trying to control his blood
sugars on his own.
Mr. Cummings claimed disability because of problems he was having with
his leg after fracturing his tibia. Mr. Cummings argues “he could have
permanent problems with his left leg.” (Docket 17 at p. 40). However, this

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position is inconsistent with the medical evidence in the record. Dr. Kadrmas’
medical notes reflect that in September 2011 Mr. Cummings “continued to do
reasonably well.” (Docket 15 at ¶ 241). Mr. Cummings did indicate some
“hypersensitivity involving the distal interlocking screws” and inquired whether
the hardware removal may be of benefit to him. Id. Dr. Kadrmas found Mr.
Cummings’ leg was “really nicely healed” with “minimal soft tissue swelling
involving his left lower extremity.” Id. Dr. Kadrmas found “no pain with stress
in the fracture site” and told Mr. Cummings the hardware should not be removed
for at least a year “to allow [for] complete healing.” Id. Based on the record,
there is no indication, as Mr. Cummings suggests, that he would have any
particular functional limitation going forward. Rather, the examination notes
indicated his leg was healing appropriately and needed time to heal completely.
In sum, the court finds the ALJ properly considered and discounted Mr.
Cummings’ subjective complaints. The court must “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 quotation marks and citations omitted). The ALJ’s credibility
determination as to plaintiff’s pain stands and Mr. Cummings’ challenge to the
2012 ALJ decision on this ground is denied.

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4. Whether the ALJ properly considered Dr. Skaleski’s opinion.
Mr. Cummings contends the ALJ erred in discounting Dr. Skaleski’s
opinions regarding Mr. Cummings’ limitations. (Docket 17 at pp. 45-48). The
defendant asserts the ALJ properly considered the record and “gave good
reasons, supported by substantial evidence in the record as a whole, for
assigning Dr. Skaleski’s opinion little weight . . . .” (Docket 23 at p. 20).
“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). “It is well
established that an ALJ may grant less weight to a treating physician’s opinion
when that opinion conflicts with other substantial medical evidence contained
within the record.” Prosch v. Apfel, 201 F.3d 1010, 1013–14 (8th Cir. 2000).
If the treating physician’s opinion is not given controlling weight under 20 CFR
§ 404.1527(c)(2), it must be weighed considering the factors in 20 CFR
§§ 404.1527(c)(2)-(6); see Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003)
(“Where controlling weight is not given to a treating source’s opinion, it is
weighed according to the factors enumerated . . . .”). The ALJ must “ ‘give good’

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reasons for discounting a treating physician’s opinion.” Dolph, 308 F.3d at
878-79.
The ALJ gave little weight to the opinions of Dr. Skaleski, Mr. Cummings’
treating physician. The ALJ noted Dr. Skaleski opined in December of 2010 Mr.
Cummings was unable to work primarily because of depression. (AR at p. 15).
The ALJ found this to be inconsistent with the treatment records and State
Agency psychological experts. Id. The ALJ remarked Dr. Skaleski was not an
expert in the field of psychology and found Mr. Cummings’ limitations were not
as severe as Dr. Skaleski opined. Id. at pp. 15-16.
Dr. Skaleski opined Mr. Cummings could occasionally lift up to 10 pounds
and could rarely finger, grasp, handle or crouch. The ALJ found this opinion
was not supported by the medical evidence. The ALJ found “no evidence or
diagnosis of any condition which would limit [Mr. Cummings’] ability to grasp,
reach, handle and finger.” Id. at p. 17. Finally, the ALJ found Dr. Skaleski’s
opinions “were inconsistent with the findings of the State Agency disability
experts and the medical expert.” Id.
After reviewing the record in this case, the court finds the ALJ gave good
reasons for assigning Dr. Skaleski’s opinion less weight. In December 2010, Dr.
Skaleski opined it was his belief Mr. Cummings’ principal problem was his
depression. (Docket 15 at ¶ 189). The ALJ found this opinion was unsupported
by medical records, which indicated Mr. Cummings’ depression was well

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controlled by medication and also reflected essentially normal mental health
exams. Id. at ¶¶ 34, 95, 121, 138, 149-50; see also Prosch, 201 F.3d at 1013-14
(ALJ may grant less weight to treating physician’s opinion when it conflicts with
other substantial evidence in the record). Although Dr. Skaleski was entitled to
express his opinion about Mr. Cummings’ mental health disorder, it is
undisputed Dr. Skaleski is not an expert in this area. The ALJ is permitted to
give less weight to the opinion of a source who is not a specialist. 20 CFR
§ 404.1527(c)(5). In this case, the court finds the ALJ gave good reasons for
assigning less weight to Dr. Skaleski’s opinion related to Mr. Cummings’ mental
health.
The ALJ found Dr. Skaleski’s opinion regarding Mr. Cummings’ physical
limitations was not supported by the record. Dr. Skaleski opined Mr. Cummings
could only “rarely finger, grasp, or handle.” (Docket 15 at ¶ 265). Dr. Skaleski
also opined Mr. Cummings could sit for a maximum of 3 hours a day, stand or
walk 0-2 hours, and occasionally lift up to 10 pounds. Id. at ¶¶ 265-68. The
record in this case does not support this limitation. Although Mr. Cummings did
report stiffness in his hands and neuropathy in his arms and feet, no physician
made a finding or diagnosis to support the severe limitations opined by Dr.
Skaleski.
Mr. Cummings’ own actions and testimony are inconsistent with Dr.
Skaleski’s opinions. Mr. Cummings played the guitar for two hours a day, was

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able to perform vehicle and home repairs, including pulling the engine from a
motorcycle, all activities which require significant fingering, grasping, and
handling. (Docket 15 at ¶¶ 40, 161, 165, 202, 243). Mr. Cummings testified he
can sit for 40 minutes at a time and can lift about 20 pounds. (AR at p. 15). Mr.
Cummings stated he could stand for an hour or more at a time before sitting
down again and could walk “a good mile, at least” without taking a break.
(Docket 15 at ¶¶ 33, 43). Mr. Cummings’ exams also indicate he had normal gait
both before he fractured his tibia and approximately six months after his
fracture, had full 5/5 muscle strength, and his fractured tibia was healing well.
Id. at ¶¶ 172, 196, 229-34, 236, 237, 240-41, 243, 244.
Finally, Mr. Cummings asserts the ALJ erred by giving substantial weight
to non-examining State Agency physicians. An ALJ may give greater weight to
non-examining medical experts where the ALJ gives good reasons for his
findings. Tindell v. Barnhart, 444 F.3d 1002, 1006 (8th Cir. 2006). In this case,
the ALJ found the record supported the opinions of the State Agency disability
and medical experts. (AR at p. 17). Dr. Winkler, a state agency medical expert,
opined in part after reviewing the medical records that Mr. Cummings was
capable of lifting and carrying up to 20 pounds, sitting for 4 hours at one time,
standing or walking for 2 hours each at one time without interruption, sit for up
to 8 hours a day, stand or walk each for 6 hours a day, frequently reach in all
directions, finger, handle, feel, push or pull bilaterally. (AR at p. 17). This

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opinion is supported by the record in this case and Mr. Cummings’ own
testimony and actions. The notations in the medical records indicate Mr.
Cummings had essentially normal exam findings. (Docket 15 at ¶¶ 172, 182,
184, 187, 196, 200, 225, 234, 237, 243, 244). In addition to the medical
records, Dr. Winkler’s opinion is supported by the daily activities Mr. Cummings
engaged in, including home and automotive repair and playing the guitar on a
frequent basis.
The ALJ gave good reasons for not assigning controlling weight to Dr.
Skaleski’s opinion. Dolph, 308 F.3d at 878-79; see also, Choate, 457 F.3d at
867-71 (affirming the ALJ’s reliance on the opinion of a reviewing physician and
the persuasive portions of two treating physicians’ opinions in assessing residual
functional capacity when the treating physicians’ opinions as to the claimant’s
functional limitations were unsupported and inconsistent). It is not the role of
the court to re-weigh the evidence and it cannot reverse the Commissioner’s
decision because the decision is supported by good reason and is based on
substantial evidence. Guilliams, 393 F.3d at 801.
5.

Whether the ALJ properly assessed Mr. Cummings’ residual
functional capacity.

Mr. Cummings argues the ALJ’s “Step Two failure to identify severe
impairments resulted in an inadequate credibility assessment, and in
combination these errors resulted in an inadequate RFC.” (Docket 17 at p. 50).
The court already determined the ALJ did not err in identifying severe

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impairments at Step Two of the sequential process or in assessing Mr.
Cummings’ credibility. The court finds the ALJ’s residual functional capacity
assessment is supported by substantial evidence in the record as a whole and by
Mr. Cummings’ testimony and daily activities.
The ALJ found Mr. Cummings had the “residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b).” (AR at p. 13).
Specifically, the ALJ found:
[T]he claimant can frequently lift and carry up to 20 pounds. He can sit
for 4 hours at one time without interruption, he can stand or walk for
2 hours each at one time without interruption. The claimant can sit for
up to 8 hours a day, stand or walk each for 6 hours a day. He can
frequently reach in all directions, finger, handle, feel, push or pull
bilaterally. The claimant can frequently operate foot controls bilaterally.
He can occasionally climb stairs and ramps but never climb ladders or
scaffolds, he can frequently balance, stoop, kneel, crouch and crawl.
The claimant should never be exposed to unprotected heights, he can
occasionally be exposed to moving mechanical parts, he can frequently
operate a motor vehicle, humidity and wetness and exposure to dust,
odors, fumes and pulmonary irritants. He can occasionally tolerate
extreme cold and heat and frequent exposure to vibrations. He can he
exposed to very loud noise (jackhammer).
Id.
Mr. Cummings testified he could sit for 40 minutes, stand for an hour,
could walk for “a good mile, at least,” and could lift up to 20 pounds. (Docket 15
at ¶¶ 33, 40, 41). Mr. Cummings also testified he would sit and play his guitar
for two hours a day. Id. at ¶ 40. In September of 2011, Dr. Skaleski opined Mr.
Cummings could sit for 3 hours, stand or walk for 0-2 hours, and occasionally
lift 20 pounds. Id. at ¶ 266.

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The ALJ asked the vocational expert whether a person who could sit for 2
to 3 hours, stand for 2 hours, walk 100 yards, lift and carry 20 pounds could
perform duties of occupations in the national economy. Id. at ¶ 46. This
question was tailored to the limitations established by Mr. Cummings and Dr.
Skaleski. The vocational expert responded that such a person could perform the
duties of an electronic worker, parking lot attendant and survey worker. Id. at
¶ 48.
The remaining portions of the RFC are supported by Mr. Cummings’
testimony. The ALJ found Mr. Cummings could frequently reach in all
directions, finger, handle, feel, and push or pull with both hands. (AR at p. 13).
This is supported by Mr. Cummings’ statements he could play the guitar for a
couple of hours at a time and work on motorcycles and car engines. (Docket 15
at ¶¶ 40, 161, 165, 202). The ALJ limited Mr. Cummings to only occasional
exposure to extreme cold or heat. (AR at p. 13). Mr. Cummings testified he
could not spend time working outside if it were too hot or cold. (Docket 15 at
¶¶ 36, 105).
Mr. Cummings contends the ALJ erred in “rely[ing] entirely on nonexamining opinion for his assessment of RFC.” (Docket 17 at p. 51) (citing
Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000). The court disagrees. As
discussed above, the ALJ incorporated many of the limitations Mr. Cummings
testified he had as a result of his impairments and adopted portions of Dr.

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Skaleski’s opinions which were supported by the record. The ALJ’s
determination is supported by substantial evidence in the record as a whole.
The court finds the ALJ did not err in determining Mr. Cummings’ residual
functional capacity.
ORDER
Based on the foregoing discussion, the court finds the ALJ’s decision is
supported by substantial evidence on the record as a whole.

Accordingly, it is

hereby
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 16) is denied.
IT IS FURTHER ORDERED that defendant’s motion to affirm the decision
of the Commissioner (Docket 22) is granted.
Dated March 24, 2014.
BY THE COURT:
/s/

Jeffrey L. Viken

JEFFREY L. VIKEN
CHIEF JUDGE

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