Sitting Crow v. Colvin

Filing 15

ORDER denying 12 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 3/20/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
LUCY SITTING CROW,

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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

CIV. 13-5022-JLV

ORDER

INTRODUCTION
Plaintiff Lucy Sitting Crow 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 6). The court
issued a briefing schedule requiring the parties to file a joint statement of
material facts (“JSMF”). (Docket 8). The parties filed their JSMF. (Docket 9).
For the reasons stated below, plaintiff’s motion to reverse the decision of the
Commissioner (Docket 12) is denied.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 9) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
On August 13, 2008, plaintiff Lucy Sitting Crow filed an application for
disability benefits, alleging disability beginning September 9, 2006. (Docket 9

at ¶ 2). A hearing was held on March 18, 2010, and an unfavorable decision
was issued on April 9, 2010. Id. The Appeals Council denied Ms. Sitting
Crow’s request for review and the decision of the ALJ became final.
(Administrative Record at pp. 59-61).1 Ms. Sitting Crow did not appeal this ALJ
decision. (Docket 9 at ¶ 2).
On August 2, 2010, Ms. Sitting Crow filed another application for Social
Security disability benefits, alleging disability since April 10, 2010. Id. at ¶ 1.
The claim was denied initially on September 21, 2010, and upon
reconsideration on December 22, 2010. (AR at p. 8). Thereafter, Ms. Sitting
Crow filed a request for a hearing and an evidentiary hearing was held on May
16, 2012. Id. On June 4, 2012, the ALJ issued a decision finding Ms. Sitting
Crow was not disabled and denying benefits. Id. at pp. 5-21. Ms. Sitting Crow
subsequently sought review from the Appeals Council. Id. at pp. 1-3. The
Appeals Council denied Ms. Sitting Crow’s review request. Id. The ALJ’s
decision constitutes the final decision of the Commissioner of the Social
Security Administration. (Docket 9 at ¶ 3). It is from this decision which Ms.
Sitting Crow timely appeals.
This issue before the court is whether the ALJ’s decision of June 4, 2012,
(the “2012 ALJ decision”) that Ms. Sitting Crow was not “under a disability, as

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The court will cite to information in the administrative record as “AR at p.
___.”
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defined in the Social Security Act . . . from April 10, 2010, through [December
31, 2010]” is supported by substantial evidence in the record as a whole. (AR,
p. 17); 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)).
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,

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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 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:

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(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
regulations. (AR, pp. 10-17-18). At step five of the evaluation, the ALJ found
there were jobs existing “in significant numbers in the national economy that
[Ms. Sitting Crow] could have performed” and she was, therefore, not disabled.
(AR at pp. 16-17).
PLAINTIFF’S ISSUES ON APPEAL
Plaintiff’s brief in support of her motion to reverse the decision of the
Commissioner identifies two main issues. (Docket 12). First, whether the ALJ
properly discounted Ms. Sitting Crow’s credibility; and second, whether the ALJ
properly rejected the opinions of Dr. Stephen Skaleski, Ms. Sitting Crow’s
treating physician. Each issue will be addressed separately.
1.

Did the ALJ properly assess Ms. Sitting Crow’s credibility?
Ms. Sitting Crow argues the ALJ did not have “good reasons” for finding

her subjective complaints of pain were not credible. In response, defendant
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argues the ALJ’s credibility determination is supported by substantial evidence
in the record as a whole.
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 those 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 reason expressly discredits a claimant’s subjective
complaints. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999).
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

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of 20 CFR 404.1529 and SSRs 96-4p and 96-7p.” (AR at p. 12). The ALJ noted
Ms. Sitting Crow has a history of rheumatoid arthritis and “retained a light
exertional level with some limitations”. Id. at p. 13. The ALJ also noted Ms.
Sitting Crow was previously found not disabled on April 9, 2010, and that she
was now claiming to be totally disabled on April 10, 2010, for the same reasons
as in her previous claim. Id. The ALJ concluded Ms. Sitting Crow “is not as
restricted as she alleges” and did not generally receive “the type of medical
treatment one would expect for a totally disabled individual, with relatively
infrequent trips to doctors for her alleged disability symptoms for treatment
that has been essentially routine and/or conservative in nature.” Id.
The ALJ recognized Ms. Sitting Crow’s “impairments may cause her some
discomfort and pain,” but found her statements regarding impairments and her
inability to work were “not fully credible.” Id. The ALJ provided several
reasons for finding Ms. Sitting Crow’s testimony not credible. The ALJ found
Ms. Sitting Crow had no medical treatment records around the date of her
alleged disability, April 10, 2010, “which would indicate such a severe increase
in symptoms” since the prior uncontested ALJ decision of April 9, 2010. Id.
The ALJ also observed that in May 2010, Ms. Sitting Crow presented to the
emergency room with a noted “history of taking pain medications
inappropriately or not at all” and that she had been taken off controlled
medications as a result of inappropriate use. Id. at p. 14.

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The ALJ noted Ms. Sitting Crow’s exams with her treating physician did
not support her claims of disabling pain. In August 2010, her treating
physician, “ ‘Dr. Skaleski, found no edema, no clubbing, no cyanosis, full range
of motion at the shoulders and wrists, nor erythema or swelling of the joints of
the upper or lower extremities, strength and sensation normal in hands and
legs, and gait normal.’ ” Id. (citing Ex. B-4F/38). In September 2010, Dr.
Skaleski wrote that Ms. Sitting Crow was “ ‘doing okay so far, but had to miss
an appointment due to her niece giving birth,” but that her exam was
“ ‘unchanged since last visit.’ ” Id. at p. 14 (citing Ex. B-5F/9). In October
2010, Ms. Sitting Crow’s medical records show she was not currently on any
disease modifying agents but that she returned to her doctor to “ ‘ discuss the
possibility to resume care.’ ” Id. at p. 14. She returned again in November
hopeful “ ‘to resume chronic pain care.’ ” Id. The November exam found “no
peripheral edema in the pedal or pretibial distributions, no calf tenderness or
cording . . . , negative Homan’s exam, . . . mild Valgus deformities of both great
toes, and moderate Varus deformity of the fifth digits bilaterally, . . . moderate
overlying edema, and erythema of these joints with moderate tenderness to
palpation, . . . prominent metatarsal heads on digits two through four on both
feet with mild hammertoe deformity on the left fourth digit, . . . [and]
dystrophic nails.” Id. (citing EX. B-7F/18). In December, Ms. Sitting Crow

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returned with exam results unchanged from her November appointment. (AR
at p. 15).
The ALJ then noted with regard to her daily activities, Ms. Sitting Crow
“attends to her personal needs and hygiene, prepares meals, performs
household chores including laundry, dusting and dishes, goes grocery
shopping and clothing shopping ‘weekly for 4 hours,’ and for enjoyment she
does ink pen collecting, jigsaw puzzles, sewing, reading, and watching
television.” Id. at p. 14.
Ms. Sitting Crow argues the ALJ’s finding she did not receive the type of
care that would be expected for a totally disabled individual is not a “good
reason” for finding her not credible. (Docket 12 at p. 7). Ms. Sitting Crow
asserts her condition cannot be surgically corrected and is most often treated
with medications and/or injections, which she received. Id.
Despite her treatments, the ALJ noted Ms. Sitting Crow had a history of
taking her medications inappropriately or not at all. (AR at p. 13). The parties’
joint statement of facts also indicates Ms. Sitting Crow has a history of
misusing prescription narcotics and violating her pain contracts with doctors.
(Docket 9 at ¶¶ 14, 24, 31). Ms. Sitting Crow’s history involving her
medications and pain contracts is a valid reason to question her credibility.
See 20 CFR § 404.1529(c)(3)(iv) (the ALJ may consider the types and dosages of
medications in evaluating credibility). Ms. Sitting Crow also had gaps in her

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treatment. The ALJ noted Ms. Sitting Crow received no treatment between
December 2010 and March 2011. (AR at p. 14). In August 2011, Dr. Skaleski
saw Ms. Sitting Crow had not refilled her prescription for four months and was
overdue to restart her medication regimen. (Docket 9 at ¶ 37). Ms. Sitting
Crow also missed appointments on occasion. Id. at ¶ 39.
The ALJ concluded that the objective medical findings did not support
Ms. Sitting Crow’s assertion of disabling pain. Particularly, her treatment
notes did not generally find swelling, redness or limited range of motion. (AR at
p. 14). The court finds the ALJ properly discounted Ms. Sitting Crow’s
subjective complaints. Ms. Sitting Crow’s history of inappropriately using pain
medication or not taking her medication coupled with the medical findings
provide substantial evidence on the record as a whole to support the ALJ’s
decision to discredit Ms. Sitting Crow’s subjective complaints of pain.
Ms. Sitting Crow also asserts that the ALJ’s conclusion her daily
activities were not limited to the extent one would expect given the complaints
of disabling symptoms was not a “good reason” to find her not credible.
(Docket 12 at p. 7). When a claimant’s activities are inconsistent with their
claimed level of disability, an ALJ may properly reject the claimant’s testimony.
Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001). In this case, Ms.
Sitting Crow testified she could only sit for about 30 minutes, or walk for only

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five to 10 minutes. (Docket 9 at ¶ 52). Ms. Sitting Crow claimed she had
difficulty grasping objects. Id. at ¶ 53.
The ALJ found Ms. Sitting Crow’s daily activities were inconsistent with
this level of disabling limitations. Ms. Sitting Crow testified she could drive her
daughter to work, cook, do dishes, do laundry, drive herself on errands, and
shop for groceries. Id. at ¶¶ 47-48. The ALJ also noted Ms. Sitting Crow
enjoyed jigsaw puzzles and sewing. (AR at p. 14). Even with Ms. Sitting Crow’s
alleged difficulty of grasping objects and limitations on sitting and walking, the
evidence in the record as a whole supports the ALJ’s finding Ms. Sitting Crow’s
daily activities were inconsistent with her claimed limitations. See Medhaug v.
Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (noting “acts such as cooking,
vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.”).
The ALJ properly considered Ms. Sitting Crow’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 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, 479 F.3d at 983
(internal quotation marks and citations omitted). The ALJ’s credibility
determination as to plaintiff’s pain stands and Ms. Sitting Crow’s challenge to
the 2012 ALJ decision on this ground is denied.

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2.

Whether the ALJ failed to assign adequate weight to Dr. Stephen
Skaleski’s opinion.
“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’
reasons for discounting a treating physician’s opinion.” Dolph v. Barnhart,
308 F.3d 876, 878-79 (8th Cir. 2002).
Dr. Stephen Skaleski was Ms. Sitting Crow’s treating physician, treating
her several times between April 2010 and May 2012. Ms. Sitting Crow
contends the ALJ failed to give proper weight to Dr. Skaleski’s opinion. “Dr.
Skaleski opined that [Ms. Sitting Crow] could lift occasionally up to 20 pounds,
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carry up to 10 pounds, could sit 30 minutes at one time and six hours total in
an eight hour work day, stand for 10 minutes at one time or 30 minutes in a
work day, and walk for five minutes at one time or 15 minutes total in an eight
hour work day.” (Docket 9 at ¶ 43). Dr. Skaleski “noted that [Ms. Sitting Crow]
would be ‘lying down’ for the one hour and 15 minutes that she was not sitting,
standing, and walking during the course of an eight hour work day.” Id. Dr.
Skaleski limited Ms. Sitting Crow’s “reaching overhead to ‘never’ and reaching
and pushing . . . to an occasional basis.” Id. “He also limited her use of her
feet for operation of foot controls to an occasional basis.” Id. Dr. Skaleski
limited Ms. Sitting Crow “to never climbing stairs and ramps, climbing ladders
or scaffolds, balancing, stooping, kneeling, crouching, or crawling due to severe
knee pain which ‘limited all of the above activities.’ ” Id.
The ALJ accorded lesser weight to Dr. Skaleski’s testimony for three
reasons over which the plaintiff objects. First, the ALJ found the “severe
limitations [were] not supported by objective clinical findings.” (AR at p. 15).
Second, the ALJ remarked that Dr. Skaleski gave his opinions in May 2012,
“over 1 ½ years since he had seen her in September 2010.”2 Id. Third, the ALJ

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The ALJ noted in his decision that Dr. Skaleski gave his opinions in May
2012, “over 1 ½ years since he had seen [Ms. Sitting Crow] in September
2010.” (AR at p. 15). This appears to be a misstatement by the ALJ. However,
the misstatement is harmless as the ALJ recognized throughout his opinion
that Ms. Sitting Crow had seen Dr. Skaleski a number of times between
September 2010 and May 2012. See AR at 14-15 (discussing treatment notes
from Dr. Skaleski dated March 2011 and August 2011).
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found Ms. Sitting Crow’s “own reported activities of daily living . . . also
demonstrate[d] a much greater capacity than that opined by Dr. Skaleski.” Id.
The ALJ pointed to specific examples supporting his conclusion that Dr.
Skaleski’s clinical findings did not support his opinions regarding Ms. Sitting
Crow’s limitations. Dr. Skaleski’s August 2010 treatment notes “found ‘no
edema, no clubbing, no cyanosis, full range of motion at the shoulders and
wrists, no erythema or swelling of the joints of the upper or lower extremities,
strength and sensation normal in the hands and legs, and gait normal.’ ” (AR at
15). The August treatment notes indicated Ms. Sitting Crow “ ‘is doing ok,
bilateral knees: no swelling, erythema, deformity or warmth, range of motion
essentially full, some bilateral medial joint line tenderness worse on the right,
no instability, drawer sign or locking.’ ” Id. The ALJ also found Dr. Skaleski’s
September 2010 notes reflected Ms Sitting Crow’s condition was “ ‘unchanged
since [her] last visit.’ ” Id.
The ALJ observed that Dr. Skaleski’s treatment notes from August 2011
indicated the need for Ms. Sitting Crow to get back on her medication regimen
and to follow “medical treatment recommendations.” Id. The ALJ concluded
Dr. Skaleski’s notes did not support his opinion that Ms. Sitting Crow had
“severe limitations,” including an inability to walk more than 15 minutes in a
total workday, stand more than 30 minutes in a total workday, “never climb,
balance, stoop, knee[l], crouch or crawl.” Id.

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In addition to the ALJ finding Dr. Skaleski’s notes did not support the
severe limitations contained in his opinions, the ALJ pointed out Ms. Sitting
Crow’s “own reported activities of daily living . . . demonstrate[d] a much
greater capacity than that opined by Dr. Skaleski.” Id. Ms. Sitting Crow
testified she attended to her personal needs and hygiene, prepared meals,
performed household chores including laundry, dusting and dishes, did her
own grocery shopping, drove her daughter to work, and drove herself to
complete errands. Id.; see also Docket 9 at ¶¶ 47-48.
The ALJ is free to accept the opinions of a treating physician which are
supported by medical evidence and plaintiff’s own testimony. See House, 500
F.3d at 744-76. “[W]hen a treating physician’s opinions are 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).
In this case, the ALJ agreed with Dr. Skaleski’s opinions in part, finding the
evidence did support a conclusion Ms. Sitting Crow could not lift more than 20
pounds occasionally or 10 pounds frequently. (AR at p. 14).
The ALJ gave greater weight to the opinions of Dr. Kevin Terry and Dr.
Kevin Whittle, who concluded Ms. Sitting Crow had the ability to “lift and/or
carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk
(with normal breaks) for a total of about 4 hours in an 8-hour workday, sit
(with normal breaks) for a total of about 6 hours in an 8-hour workday, was

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unlimited in push and/or pull activities including operation of hand and/or
foot controls other than as shown for lift and/or carry, [and] occasionally climb
ramps, stairs, ladders, ropes and scaffolds, occasionally balance, stoop, kneel,
crouch and crawl.” (AR at p. 14). Dr. Terry also opined Ms. Sitting Crow “had
no established manipulative, visual, communicative or environmental
limitations except to avoid concentrated exposure to extreme cold, wetness,
and humidity.” Id. at pp. 14-15.
Dr. Terry reviewed Ms. Sitting Crow’s medical findings and explained
Ms. Sitting Crow’s “statements were not fully supported by the objective clinic
findings of the record, [and noted Ms. Sitting Crow’s] knee symptoms seemed to
predominate, with tenderness, but [she] had full range of motion on exam, with
no knee swelling or synovitis, and no other joint abnormality.” Id. at 15. Dr.
Whittle concurred with Dr. Terry’s opinions, “finding his opinions were
consistent with the objective medical findings in the record.” Id.
The ALJ gave good reasons for not assigning controlling weight to Dr.
Skaleski’s opinions. 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 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

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decision when the decision is supported by good reason and is based on
substantial evidence. Guilliams, 393 F.3d at 801.
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 12) is denied.
Dated March 20, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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