Edwards v. Berryhill
Filing
24
MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER Signed by U.S. District Judge Karen E. Schreier on 03/22/2019. (SAC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DORIS EDWARDS,
5:17-CV-05092-KES
Plaintiff,
vs.
MEMORANDUM OPINION AND
ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Plaintiff, Doris Edwards, seeks review of the decision of the
Commissioner of the Social Security Administration denying her claim for
disability insurance benefits (SSDI) under Title II of the Social Security Act, 42
U.S.C. § 423. Docket 17. The Commissioner opposes the motion and urges the
court to affirm the denial of benefits. Docket 18. For the following reasons, the
court affirms the decision of the Commissioner.
PROCEDURAL HISTORY
Edwards filed for SSDI benefits on July 29, 2014, alleging disability since
April 3, 2010. AR 91, 285. The Commissioner denied her claim initially on
January 22, 2015, and upon reconsideration on April 22, 2015. AR 117-21,
126-32. Edwards then appeared with counsel before Administrative Law Judge
(ALJ) Michele M. Kelley on January 10, 2017. See AR 30 (transcript of hearing).
The ALJ issued an opinion affirming the denial of benefits on April 5, 2017. AR
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11-23. The Appeals Council denied Edwards’s request for review on November
14, 2017. AR 1-4. Thus, Edwards’s appeal of the Commissioner’s final decision
is properly before the court under 42 U.S.C. § 405(g).
FACTUAL BACKGROUND
Plaintiff, Doris Edwards, was born on July 5, 1960. AR 40. Edwards is a
military veteran and divorced. AR 577, 612. At the time of the hearing,
Edwards was living with a female roommate named Alice. AR 47. Edwards and
Alice have lived together “on and off” since 1999. AR 52. Between the onset
date and the date last insured, Edwards lived with Alice. AR 49-50. During the
relevant time period, Alice assisted Edwards with several activities like
dressing, showering, and caring for Edwards’s emotional support dog. AR 47,
52-53, 621-22.
Before the onset date, Edwards had the following health issues: hearing
loss, sleep apnea, obesity, shoulder injury, osteoarthrosis of the leg and knee,
dysthymia, knee injury, ovarian cancer, depression, and asthma. AR 652
(emergency department problem list from April of 2009). To address the sleep
apnea issue, Edwards used a sleep apnea machine. AR 622. Edwards’s
shoulder injury stemmed from an injury during her time in the military. AR
462, 577. Edwards has a history of multiple orthopedic surgeries. AR 576-77.
Edwards has been cancer free since 2005. AR 462. Additionally, on February
24, 2010, Edwards was diagnosed with plantar fasciitis. AR 573-74.
In July of 2009, Edwards was diagnosed with fibromyalgia. AR 357-58.
Edwards was prescribed medication to treat this condition. AR 588. On March
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18, 2010, Edwards complained her fibromyalgia was “still bothersome.”
AR 577. Dr. Margaret Becker, Edwards’s primary care physician, assessed
Edwards’s fibromyalgia as “not well controlled.” AR 560. At her next primary
care appointment with Dr. Becker on June 14, 2010, Edwards complained her
fibromyalgia was “acting up.” AR 546. At this time, Dr. Becker changed her
prescription. AR 549. On November 26, 2010, Edwards’s MRI scans showed
mild degenerative disc changes but no significant canal or foraminal stenosis.
AR 666. At a neurology consultation with Dr. Laurie A. Weisensee on April 6,
2011, Edwards’s lumbar spine magnetic resonance imaging was unremarkable.
AR 463. Dr. Weisensee stated she did not find any neurologic concerns. Id.
Edwards also has chronic pain in her knees, hips, and lower back. On
June 2, 2010, both of Edwards’s knees were x-rayed. AR 670-73. All three
compartments of her knees demonstrated osteoarthritic changes. AR 671, 673.
At an orthopedic consultation with Dr. Curtis Hartman on September 3, 2010,
Edwards complained of longstanding bilateral knee pain, numbness in her
legs, and falling on a regular basis. AR 359. Dr. Hartman stated the x-rays
showed “significant arthritic changes” in the knee, mild to moderate. AR 360.
Also, he worried that the majority of the pain was related to Edwards’s back
and lumbar spine. Id.
At a primary care appointment with Dr. Becker on September 22, 2010,
Edwards had tenderness throughout her back muscles and spine. AR 510. Dr.
Becker stated Edwards’s hip films from a year ago were “unremarkable.” Id. On
October 4, 2010, Edwards’s lumbar spine film showed there was no fracture or
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malalignment. AR 667. Additionally, she had unremarkable bilateral hip films.
AR 668-70. On November 26, 2010, Edwards’s lumbar spine film showed no
significant canal or foraminal stenoses, but did show mild degenerative disc
changes and mild facet acropathy. AR 664-66.
On April 6, 2011, at Edwards’s neurology consultation with Dr.
Weisensee, Edwards complained of chronic pain in her bilateral knees and
back. AR 462. Dr. Weisensee opined there were degenerative findings in
Edwards’s knees; she also noted that Edwards’s hip films were unremarkable.
AR 463. At her primary care appointment on September 19, 2011, Dr. Becker
noted Edwards had lower back tenderness, knee pain, and used crutches. AR
446. Edwards’s radiology films from September 22, 2011, showed Edwards had
osteoarthritis and mild degenerative joint disease in her knees. AR 662.
Edwards did not have another primary care appointment with Dr. Becker for
the next two years. AR 384, 416.
In addition to her physical health issues, Edwards received treatment for
her mental health. Edwards was diagnosed with depression, which her mental
health providers, Dr. Shirley Herbel and Dr. Thomas J. Jewitt, classified as a
chronic condition. AR 466, 551. Edwards had mental health counseling
sessions with Dr. Herbel, a psychologist at the Veterans Affairs Black Hills Fort
Meade Campus, to address her symptoms of depression/dysthymia. AR 641.
These sessions occurred between every three to four weeks (AR 641) or between
every four to six weeks (AR 585) depending on Edwards’s depression and
symptoms. In the record, Dr. Herbel’s treatment notes for Edwards start
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around May of 2009. AR 641. During the relevant time period, Edwards met
with Dr. Herbel twenty-three times. AR 390, 391, 393, 402, 404, 421, 425,
429, 431, 434, 436, 440, 455, 456, 460, 464, 481, 495, 504, 518, 538, 551,
552.
Additionally, Edwards met with Dr. Jewitt, a physician at the VA Black
Hills Fort Meade Campus, for her mental health medication checkups. AR 640.
Dr. Jewitt specialized in psychiatry. AR 68-71. In the record, Dr. Jewitt’s
treatment notes start around June of 2009. AR 639-40. Dr. Jewitt generally
met with Edwards twice a year. AR 846. During the relevant time period,
Edwards met with Dr. Jewitt six times. AR 417, 459, 466, 505, 553, 554.
For the current claim, Edwards’s onset date is April 3, 2010. AR 11, 285.
Her date last insured status expired on December 31, 2012. AR 33. Edwards’s
original onset date was September 16, 2006. AR 285. But Edwards’s first social
security claim covered the time of her original onset date to April 1, 2010 (the
date her first claim’s decision was issued). AR 11. Edwards previously filed a
social security claim in 2015 but was denied based on her receipt of Veterans
Affairs benefits. AR 33. Her VA benefits decreased in amount in January of
2016. AR 33. The decrease in VA benefits allowed her to be eligible for social
security disability insurance benefits. Id.
ADMINISTRATIVE HEARING
During the administrative hearing, the ALJ heard testimony from
Edwards and a vocational expert. Edwards, represented by counsel at the
hearing, testified about the pain she had during the relevant time period.
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Edwards stated she experienced a constant sharp pain from “the top of [her]
head to the tip of [her] toes.” AR 40. She testified that her doctors told her the
pain was caused by fibromyalgia and prescribed her medication. AR 40.
Edwards also testified about the constant pain in her right shoulder and
both of her knees. AR 41. Edwards testified she had complete knee
replacements of both her knees the year before the hearing (outside of the
relevant time period). AR 50. Edwards stated that even after her knee
replacements she still used a cane to walk because of her fear of falling. AR 51.
She testified that she still had a lot of pain in her knees, but it was “a little
less” than before the replacements. AR 51. She also mentioned she had surgery
on her left shoulder. AR 50.
Edwards testified about how her pain affects her daily activities. AR 4344. She stated she can only sit and stand for ten-minute increments and can
only walk for five minutes. AR 43. She said her ability to lift is also restricted
by the limited use of her right arm. AR 44. Her pain only allows her to sleep for
two-hour increments. AR 46. Her day consisted of waking up, taking care of
her dog, her roommate making her breakfast, sitting on the couch to watch TV,
and taking a nap. Id. Edwards testified that she can only sit for a short period
of time before she has to get up, move around, and then can sit down again. Id.
She also testified that she needed help from her roommate to take a shower
and get dressed. AR 47. Edwards also testified about caring for her dog. AR 46.
Edwards stated she owned a Jack Russel terrier as an emotional support dog
during the relevant time period. AR 47, 52.
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Additionally, Edwards testified about her use of assistive devices. AR 4142. She stated that during the relevant time period, she used crutches (held by
her hands) that were prescribed by her doctor. AR 41. She testified that she
was prescribed the crutches because her knees were damaged and she could
not stand up on her own or she would fall. AR 42. Also, during the relevant
time, she was prescribed a wheeled walker. Id. She used the walker to assist in
walking and to sit for rest when she was outside on level ground. Id.
Edwards also testified about various trips she took during the relevant
time period. AR 47-49. Edwards took two road trips, one to California and one
to Texas. Id. The purposes of the trips were to visit family. AR 47. During these
trips, Edwards’s roommate or sister drove, and they took several stops to eat,
rest, and for Edwards to move around. Id.
Edwards also testified about her depression. AR 45. Edwards stated that
her depression was severe. Id. She explained how her depression made her feel
useless and that she attempted suicide. Id. She testified that she was
prescribed medication that helped with her depression. Id.
William Tisdale served as the vocational expert at the hearing. AR 54.
The ALJ posed two hypotheticals. AR 56-57, 60-61. For the first hypothetical,
the ALJ asked whether an individual with the similar past work history, age,
and educational background as Edwards, who could stand and walk for two
hours, sit for six hours, with additional lifting and moving limitations, could
perform any of Edwards’s past jobs. AR 56-57. The vocational expert stated
that such an individual could work as a night auditor, a billing clerk, and a
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cashier. AR 57-59. For the second hypothetical, the individual was the same as
the first but was off task two hours per work day. AR 60-61. The vocational
expert testified that the individual could not perform any of Edwards’s past
work or be a billing clerk. AR 61. Edwards’s attorney also asked about a
hypothetical situation to the vocational expert. Id. Edwards’s attorney asked
what jobs were available for an individual who could sit and stand for ten
minutes at a time and only walk for five minutes. Id. The vocational expert
stated that the individual could not perform any job. AR 62.
ALJ DECISION
Employing the five-step analysis associated with an application for social
security benefits, the ALJ denied Edwards’s claim on April 5, 2017. AR 23. At
step one, the ALJ found that Edwards had not engaged in substantial gainful
activity from her alleged onset date, September 16, 2006, through her date last
insured, December 31, 2012. AR 13. At step two, the ALJ determined Edwards
had the following severe impairments: osteoarthritis of the knees, degenerative
disc disease, asthma, plantar fasciitis bilaterally, and obesity. AR 13.
At step three, the ALJ concluded Edwards did not have an impairment or
combination of impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 15.
At step four, the ALJ found Edwards had the residual functional capacity (RFC)
to perform sedentary work with some limitations. 1 AR 17, 21. At step five, the
The ALJ found Edwards could lift, carry, push and pull ten pounds
occasionally and less than ten pounds frequently; could stand and walk for two
hours in an eight hour workday; could sit for about six hours in an eight hour
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ALJ found, through the date last insured, Edwards was capable of performing
past relevant work as a night auditor, medication aide, and cashier. AR 21. The
ALJ held that based on Edwards’s age, education, work experience, and RFC,
through the date last insured, Edwards was capable of making a successful
adjustment to other work that existed in significant numbers in the national
economy. AR 23. Thus, the ALJ concluded that Edwards was not disabled
under the Social Security Act. Id.
STANDARD OF REVIEW
The court must uphold the ALJ’s decision if it is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings
of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”); Teague v. Astrue, 638 F.3d
611, 614 (8th Cir. 2011). “ ‘Substantial evidence is less than a preponderance,
but is enough that a reasonable mind would find it adequate to support the
conclusion.’ ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both
evidence that supports and evidence that detracts from the Commissioner’s
decision.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
workday; could occasionally climb ramps and stairs, as well as balance and
crouch; could frequently stoop; could occasionally reach from her shoulders to
the front and laterally and overhead beyond shoulder level; and could still
reach hinging at the elbows forward. AR 17. The ALJ found Edwards could not
climb ladders, ropes, or scaffolds; could not kneel or crawl; needed to avoid
concentrated exposure to temperature extremes, humidity, and hazards;
needed to avoid even moderate exposure to fumes, odors, dust, gases, and poor
ventilation. Id.
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Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). If the Commissioner’s
decision is supported by substantial evidence in the record as a whole, the
court may not reverse it merely because substantial evidence also exists in the
record that would support a contrary position or because the court would have
determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction
of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).
THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
Disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
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 12 months[.]” 42
U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(3)(A). “An individual shall be
determined to be under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the national
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economy[.]” 42 U.S.C. § 423(d)(2)(A). An ALJ must apply a five-step procedure
when determining if an applicant is disabled. Smith v. Shalala, 987 F.2d 1371,
1373 (8th Cir. 1993). The steps are as follows:
Step One: Determine whether the applicant is presently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).
Step Two: Determine whether the applicant has an impairment or a
combination of impairments that are severe. 20 C.F.R. § 404.1520(c); 20 C.F.R.
§ 416.920(c).
Step Three: Determine whether any of the severe impairments identified
in Step Two match the listing in Appendix 1. 20 C.F.R. § 404.1520(d); 20
C.F.R. § 416.920(d).
Step Four: Considering the applicant’s RFC, determine whether the
applicant can perform any past relevant work. 20 C.F.R. § 404.1520(e); 20
C.F.R. § 416.920(g).
Step Five: Determine whether any substantial gainful activity exists in
the national economy that the applicant can perform. 20 C.F.R. § 404.1520(f);
20 C.F.R. § 416.920(f).
DISCUSSION
Edwards urges the court to review the ALJ’s decision for the following
reasons: (1) the ALJ failed to identify Edwards’s psychological condition as a
severe impairment; (2) the ALJ erred in rejecting part of the treating physician’s
opinion; and (3) the ALJ erred in rejecting Edwards’s subjective complaints.
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Docket 17. The court will address these arguments in the order of the five-step
procedure outlined above.
I.
Step Two
At step two, the ALJ must determine whether Edwards has an
impairment or a combination of impairments that are severe. 20 C.F.R. §
404.1520(c). An impairment is not severe if it does not significantly limit the
claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §
404.1522 (2016). Edwards argues that the ALJ should have found Edwards’s
depression was a severe impairment because Dr. Jewitt’s opinion and
Edwards’s mental health record show Edwards suffered from waxing and
waning depression that had more than a “minimal effect” on her ability to
work. Docket 17 at 35.
The ALJ found that Edwards had the severe impairments of
osteoarthritis of the knees, degenerative disc disease, asthma, plantar fasciitis
bilaterally, and obesity. AR 13. The ALJ concluded that Edwards did not have a
mental health condition that was considered to be severe. AR 15. The ALJ
discussed several of Edwards’s mental health treatment records. AR 14-15. In
addition to the medical records, the ALJ considered an opinion by Dr. Jewitt
from 2017. AR 15. Dr. Jewitt opined that Edwards had marked limitations in
some functioning. Id. (citing AR 847-49). The ALJ gave little weight to Dr.
Jewitt’s opinion contained in the Medical Source Statement form (AR 847-49).
AR 15. Based on her review of the record, the ALJ concluded that the treatment
notes indicated Edwards was not under significant mental health distress.
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AR 15. Regarding Edwards’s mental health disorder, the ALJ found that
Edwards had “mild difficulties in understanding, remembering, or applying
information; mild difficulties in interacting with others; mild difficulties in
maintain concentration, persistence, or pace; and mild difficulties adapting or
managing oneself.” Id. Therefore, Edwards’s depression did not meet the
standards in Appendix 1 and would not be classified as a severe impairment.
A.
Substantial evidence in the record supports the ALJ’s finding
that Edwards had mild difficulties in her ability to do work
because of her mental health disorder.
Edwards argues “the ALJ only picked out two notes where Edwards was
doing better with her depression, implying that Edwards was not having any
significant health issues.” Docket 17 at 34. Edwards argues that the treatment
notes established Edwards suffered from waxing and waning depression
symptoms. Id. Edwards, however, cites to no treatment records. Instead,
Edwards only cites to a Medical Source Statement form completed by Dr.
Jewitt in 2017. Id. (citing AR 847). In this report, Dr. Jewitt never mentioned
the “waxing and waning” symptoms of Edwards’s depression. See AR 847-49.
But he noted that her “[i]rritability is variable, but always present.” AR 848.
Here, substantial evidence in the record supports the ALJ’s finding that
Edwards’s depression was not severe. The ALJ discussed several medical
records that demonstrated Edwards’s mental condition was stable and had
minimal effect on her ability to do work. AR 14-15. For example, the ALJ
discussed a medical record from 2009 that indicated Edwards’s dysthymia was
stable. AR 14. In this medical record from November of 2009, Dr. Herbel noted
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Edwards had good eye contact, spontaneous speech, intact memory, no suicide
ideation, no psychotic symptoms, and stable dysthymia. AR 596.
Also, the ALJ discussed a treatment note from October of 2010 where Dr.
Jewitt noted that Edwards’s mood appeared “pretty stable with a positive and
pleasant affect.” AR 14 (citing AR 505). Dr. Jewitt observed that even with
“tough days,” Edwards was “overall doing well.” AR 505. The ALJ also relied on
a treatment note by Dr. Herbel from October of 2012 that indicated Edwards
had a minimal labile affect and intact memory. AR 14 (citing AR 437). At this
appointment, Dr. Herbel noted Edwards was less dysphoric, had good eye
contact, logical thinking, no psychotic symptoms, and stable dysthymia. AR
436-37.
And the ALJ considered evidence from Dr. Jewitt’s June 2015 treatment
notes, where Dr. Jewitt noted that Edwards was able to make her own
decisions and was responsible for her own actions. AR 15 (citing AR 846). The
ALJ looked at notes from Dr. Herbel from that same month. AR 15. Dr. Herbel
stated that Edwards’s diagnosis was stable dysthymia and dependent
personality traits. AR 842. She noted Edwards’s condition was chronic, yet
stable. AR 841. The ALJ, in addition, looked at Dr. Herbel’s treatment notes
from August of 2016 that indicated Edwards had minimal labile affect, minimal
tangential speech, good eye contact, stable dysthymia, and no hopelessness or
suicidal ideation. AR 14-15 (citing AR 838-39). Additionally, the ALJ considered
treatment notes from January of 2017 where Edwards reported having
problems with her depression. AR 14 (citing AR 837). In the treatment notes,
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Dr. Herbel noted that Edwards was in a dysthymic mood and that Edwards
complained of memory issues and sadness. AR 837. But Dr. Herbel noted that
Edwards condition was static, Edwards denied suicidal ideation and
hopelessness, and had intact memory. Id.
Substantial evidence in the record shows that during the relevant time,
Edwards’s mental condition remained the same. At several appointments, Dr.
Herbel noted Edwards’s dysthymia was “stable.” AR 390, 391, 393, 402, 405,
422, 426, 429, 432, 435, 437, 441, 456, 457, 460, 464, 482, 496, 504, 518,
538, 551, 552. Additionally, at all of her appointments with Dr. Herbel,
Edwards arrived on time, had no psychotic symptoms nor suicidal thoughts,
and had intact memory. AR 390, 391, 393, 402, 404-05, 422, 425-26, 429,
431, 434-35, 436-37, 440-41, 455-57, 460, 464, 481-82, 495-96, 504, 518-19,
538, 551, 552. Though Edwards’s symptoms would change depending on her
life situations, her overall mental condition did not vary too often. From
February 2, 2012 to December 4, 2012, Edwards’s symptoms and moods
remained constant. AR 390, 391, 393, 402, 405, 422, 425, 429, 431. During
that entire time period, Edwards had a euthymic mood and logical thinking. Id.
B.
The ALJ properly discounted Dr. Jewitt’s 2017 opinion.
A treating physician is a doctor with whom the patient “has, or has had,
an ongoing treatment relationship[.]” 20 C.F.R. § 404.1502 (2016); 20 C.F.R. §
416.902 (2015). A treating physician’s opinion should generally be given
controlling weight if the opinion is “well-supported by medically acceptable”
diagnostic techniques and is consistent “with the other substantial evidence in
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the record.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting
Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)). But a treating
physician’s opinion is not automatically controlling because the ALJ must
evaluate the record as a whole. Smith v. Colvin, 756 F.3d 621, 627 (8th Cir.
2014); Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007). The ALJ can
discredit or disregard the treating physician’s opinion when the “opinion
conflicts with other substantial medical evidence contained within the record”
or when the treating physician’s opinion is inconsistent and undermines the
opinion’s credibility. Wagner, 499 F.3d at 849 (citations omitted). The ALJ “may
credit other medical evaluations over that of the treating physician when such
other assessments are supported by better or more thorough medical
evidence.” Id. (quoting Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000)).
The ALJ resolves conflicts between the various opinions and evaluation
from treating and examining physicians. Wagner, 499 F.3d at 848. In
determining what weight to give any medical opinion, the ALJ should consider
the following factors: (1) examining relationship; (2) treating relationship; (3)
supportability of the opinion; (4) consistency; (5) specialization; and (6) “any
factors [the applicant] or others bring[s] to [the ALJ's] attention.” Id. (alteration
in original) (quoting 20 C.F.R. § 404.1527(d)). The ALJ must provide “good
reasons” for the weight given to the treating physician’s opinion. Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (citation omitted). “This requires
the ALJ to explain in his written decision, with some specificity, why he has
16
rejected the treating physician’s opinion.” Walker v. Comm’r, 911 F.3d 550, 553
(8th Cir. 2018) (citing Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)).
Edwards argues the ALJ erred in evaluating the opinion of Dr. Jewitt.
Docket 17 at 36. The ALJ gave little weight to one of Dr. Jewitt’s medical
opinions from 2017. AR 15. Edwards claims that the ALJ did not provide “good
reasons” for rejecting Dr. Jewitt’s opinion and that the reasons for rejecting Dr.
Jewitt’s opinion are unsupported by the record. Docket 17 at 36.
The ALJ provided four reasons for the weight given to Dr. Jewitt’s
opinion. AR 15. First, the opinion, dated 2017, was more than four years after
Edwards’s last date insured. Id. Second, the medical evidence was inconsistent
with Dr. Jewitt’s opinion. Id. Third, Dr. Jewitt is not a mental health specialist.
Id. Fourth, the opinion was influenced by the personal relationship and
treatment history between Dr. Jewitt and Edwards. Id.
Edwards argues that the ALJ’s two reasons “miss the mark.” Docket 17
at 34. Edwards incorrectly states that the ALJ provided only two reasons for
giving little weight to Dr. Jewitt’s 2017 opinion. The ALJ provided four reasons
for her weight determination. AR 15. Edwards only attacks two of the four
reasons provided by the ALJ. First, Edwards contends that the ALJ’s stated
reason that the medical evidence was inconsistent with Jewitt’s opinion is
incorrect because the treatment notes show Edwards was under significant
mental health distress. Docket 17 at 34. Second, Edwards argues the ALJ
erred in her statement that Dr. Jewitt is not a mental health specialist. Id. The
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court will address the two reasons Edwards attacks and then address the two
other reasons provided by the ALJ.
1.
Inconsistent with substantial evidence in the record.
Edwards contends the ALJ’s reasoning, that Dr. Jewitt’s opinion is
inconsistent with the record, misses the mark because the treatment notes
show that Edwards experienced significant mental health distress. Docket 17
at 34. As discussed above, the court found that substantial medical evidence in
the record supported the ALJ’s finding that Edwards was not under significant
mental distress and that Edwards only had mild difficulties in her ability to do
work related activities. Dr. Jewitt’s opinion that Edwards had moderate and
marked limitations is inconsistent with substantial evidence in the record for
the reasons stated above. Because Dr. Jewitt’s 2017 opinion is inconsistent
with substantial evidence in the record, it is not entitled to controlling weight.
Wagner, 499 F.3d at 849.
In addition to being inconsistent with other medical evidence in the
record, the ALJ properly discounted Dr. Jewitt’s 2017 opinion because it was
inconsistent with Dr. Jewitt’s own medical opinions rendered during the
relevant period of time. In Krogmeier v. Barnhart, the Eighth Circuit found
there was substantial evidence in the record to support the ALJ’s decision to
give little weight to a treating provider’s opinion rendered after the relevant
time period. 294 F.3d 1019, 1023 (8th Cir. 2002). During the onset date and
the date last insured, the treating provider regularly noted that the claimant’s
depression was controlled and the claimant required a low-stress environment.
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Id. After the relevant time period, the treating provider rendered an opinion
that the claimant could not handle any stress or he would relapse into further
depression. Id. The Eighth Circuit reasoned that the opinion did not deserve
controlling weight because it was inconsistent with the treating source’s
contemporaneous treatment notes. Id.
Here, Dr. Jewitt’s 2017 opinion is inconsistent with the opinions he
rendered during the relevant period of time. In 2017, on the Medical Source
Statement form, Dr. Jewitt opinioned that Edwards’s mental health affected
her ability to understand, remember, and carry out instructions. AR 847. Dr.
Jewitt’s contemporaneous notes in 2012 demonstrated that Edwards’s thinking
and judgment were not “marked.” At Edwards’s medication checkup on July
12, 2012, Dr. Jewitt wrote, “Thinking is clear and logical. Insight is partial,
judgment is not great but neither is it seriously impaired.” AR 417.
Additionally, none of Dr. Jewitt’s treatment notes made during the relevant
time period discuss any of the capabilities he checked as “marked” on the
Medical Source Statement. See AR 417, 459, 466, 505, 553, 554.
In his 2017 opinion, Dr. Jewitt noted that irritability is always present,
but nowhere in his treatment notes during the relevant time period did he note
this issue. See AR 417, 459, 466, 505, 553, 554. The first time Dr. Jewitt noted
irritability was in June of 2015. AR 846. Dr. Jewitt commented, “While
somewhat agitated and verbal, she is not out of control[.]” AR 846. This note
was recorded past the last date insured. In February of 2016, Dr. Jewitt
observed that Edwards was “a bit edgy.” AR 845. Here, Edwards cannot use Dr.
19
Jewitt’s opinions rendered after her last date insured to support her disability
claim. “Medical evidence from after a claimant's date last insured is only
relevant to a disability determination where the evidence relates back to the
claimant's limitations prior to the date last insured.” Scheets v. Astrue, No. 09–
3437–CV–S–REL–SSA, 2011 WL 144919, at *17 (W.D. Mo. Jan. 18, 2011).
Additionally, Dr. Jewitt’s notes after 2012 demonstrate that Dr. Jewitt’s 2017
opinion likely relied on his most recent treatment notes and not his notes from
the relevant time period.
The only contemporaneous note that supports Dr. Jewitt’s 2017 opinion
is an opinion from Dr. Jewitt on April 7, 2010. AR 554. At that appointment,
Dr. Jewitt wrote, “I think she really is pretty disabled . . . .” Id. Additionally, he
opined, “Seeking and maintain competitive employment is absolutely out of the
question for her given the complexity of her physical and emotional problems.”
Id. Here, the ALJ did not need to give controlling weight to this opinion from
2010. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (“A medical
source opinion that an applicant is ‘disabled’ or ‘unable to work’ . . . involves
an issue reserved for the Commissioner . . . .”).
Overall, the ALJ did not err in her reasoning that Dr. Jewitt’s 2017
opinion is inconsistent with the medical evidence. The court finds that Dr.
Jewitt’s opinion was inconsistent with other substantial evidence in the record
and inconsistent with his own contemporaneous treatment notes.
20
2.
Mental Health Specialist
Edwards argues that the ALJ erred when she found that Dr. Jewitt was
not a mental health specialist. Docket 17 at 34. Generally, more weight is given
to the medical opinion of a specialist about medical issues that relate to his
area of specialty. 20 C.F.R. § 404.1527(c)(5); see Wright v. Colvin, 789 F.3d 847,
855 (8th Cir. 2015) (stating the ALJ “was within his purview not to give these
observations [of depression] much weight because they were not from
specialists in the mental health field.”).
Edwards states that Dr. Jewitt is a specialist mental health provider
because Dr. Jewitt is a psychiatrist. Docket 17 at 34. The record, however, is
not clear on whether Dr. Jewitt had a specialty in mental health. On the
Medical Source Statement, Dr. Jewitt failed to provide his specialty in the
Medical Specialty blank; instead, he signed the form with his name and M.D.
AR 849. In all of his treatment notes, he signed as “Thomas L. Jewitt, MD,
Physician.” AR 553. But there is some evidence that shows he worked within
the psychiatry area. For example, the local title in all of his treatment notes
states, “MHC – Psychiatry Clinician” and “Mental Health Physician Note.” AR
417, 466, 505, 553, 554. The record was clarified when Edwards submitted
evidence to the Appeals Council that Dr. Jewitt was appointed to Black Hills
Health Care System in 1993 in the Mental Health Department with a specialty
in Psychiatry. AR 68-73. Thus, substantial evidence in the record supports the
fact that Dr. Jewitt is a mental health specialist provider.
21
Though the court rejects this reason provided by the ALJ, it does not
mean that the ALJ’s discounting of Dr. Jewitt’s opinion was improper. The ALJ
acknowledged Dr. Jewitt was one of Edwards’s treating mental health
providers. AR 15. Also, the Eighth Circuit has held that when a specialist’s
opinion is “controverted by substantial evidence or is otherwise discredited” the
rule that entitles the specialist’s opinion greater weight does not apply. Prosch,
201 F.3d at 1014. Thus, Dr. Jewitt’s opinion is not entitled to greater weight,
though he is a mental health specialist, because his opinion is contrary to
other substantial medical evidence in the record as discussed above.
Additionally, the other three reasons provided by the ALJ are supported by
substantial evidence in the record.
3.
Date of Opinion
The court will now address the two additional reasons provided by the
ALJ. The ALJ gave less weight to Dr. Jewitt’s opinion because it was rendered
four years after Edwards’s disability insured status expired. AR 15. The Eighth
Circuit upheld an ALJ’s decision to give less weight to a treating source’s
opinion, dated 2017, because it was rendered three years after the claimant’s
benefits expired. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). “Evidence
from outside the insured period can be used in ‘helping to elucidate a medical
condition during the time for which benefits might be rewarded.’ ” Id. at 877
(quoting Pyland v. Apfel, 149 F.3d 873, 877 (8th Cir. 1998)); see, e.g., Eastvold
v. Astrue, 2010 WL 1286334, at *47 (D. Minn. Feb. 12, 2010) (finding that the
ALJ properly rejected a medical report because it “was completed several years
22
after the date last insured” and “does not purport to relate back to the date last
insured.”).
Edwards’s date last insured was December 31, 2012. AR 11. Dr. Jewitt
completed the Medical Source Statement form on January 23, 2017. AR 849.
Dr. Jewitt wrote on the form, “Please rate her capabilities for the time period
April 2010 to December 31, 2012 and December 31, 2012 to present.” AR 848.
Nowhere on the form does Dr. Jewitt indicate which opinions apply to the two
different time periods. See 847-49. The opinions in the form could pertain to
Edwards’s capabilities beyond the relevant time period. See Bannister v. Astrue,
730 F. Supp. 2d 946, 954 (S.D. Iowa 2010) (citing Moore v. Astrue, 572 F.3d
520, 525 (8th Cir. 2009) (upholding the ALJ’s attribution of less weight to a
medical opinion because it was not relevant to the time period prior to
claimant’s date last insured)). Thus, the ALJ properly discounted this opinion
based on its timeliness.
4.
Influenced by Personal Relationship
The final reason the ALJ gave was the opinion appeared to be influenced
by the personal relationship and treatment history of Dr. Jewitt and Edwards.
AR 15. In Coggon v. Barnhart, the district court held that it was reasonable for
the ALJ to label one of the treating source’s opinions as an “advocacy” opinion.
354 F. Supp. 2d 40, 53 (D. Mass. 2005). The court noted several facts that
demonstrated a potential bias: (1) the treating source completed a
questionnaire that was created by the claimant’s attorneys; (2) the opinions in
the questionnaire rendered the claimant bedridden; (3) the opinions were
23
inconsistent with other evidence in the record; and (4) the treating source
stated the claimant was “disabled” and “unfortunately, her disability was
denied.” Id. The court held that all of this evidence demostrated a potential bias
and predisposition on the treating source’s part to advocate on the claimant’s
behalf. Id.
Here, the facts are similar to those in Coggon. Substantial evidence in the
record indicates that the ALJ was reasonable in noting a potential bias existed.
First, Dr. Jewitt’s opinion in the Medical Source Statement essentially
concluded that Edwards had severe mental health distress (AR 847-49), which
was not consistent with substantial evidence in the record. Second, Dr. Jewitt
stated Edwards was “disabled” and made comments about the status of
Edwards’s social security claim. For example, at an October 2009 medication
checkup, Dr. Jewitt mentioned that Edwards’s social security application was
at the administrative judge level for the last year and suggested that Edwards
call social security every few months for an update. AR 598. Again, at
Edwards’s April 7, 2010 medication checkup with Dr. Jewitt, Dr. Jewitt
discussed Edwards’s social security process and recommended she contact an
attorney. AR 554. He noted that she was upset because her social security
appeal was denied and reviewed with her how to find an attorney. Id. His
conclusion that she was “pretty disabled” was preceded by his discussion of the
social security denial and followed by his opinion that “the organized approach
that the attorney will provide will be needed.” Id. Thus, the ALJ did have a
24
basis to conclude that Dr. Jewitt had a potential bias and predisposition to
advocate on Edwards’s behalf.
5.
Conclusory Opinion
In addition to the four reasons stated above, the ALJ properly discounted
Dr. Jewitt’s 2017 opinion because it was conclusory. A treating physician’s
opinion does not deserve greater weight than other physicians’ opinions when
the treating physician’s opinion contains “nothing more than vague, conclusory
statements.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting
Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)). “[T]he checklist format,
generality, and incompleteness of the assessments limit [the assessments']
evidentiary value.” Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001).
Dr. Jewitt’s completion of the Medical Source Statement (AR 847-50) was
conclusory as he cited no medical evidence to back up his statements and
provided no elaboration. See Wildman, 596 F.3d at 964 (upholding the ALJ’s
decision to discount a treating physician’s opinion because it was conclusory,
consisted of three checklist forms, cited no medical evidence, and provided no
elaboration).
Here, Dr. Jewitt merely checked boxes to label Edwards’s ability to
perform work activities. AR 847-48. The first question asks whether Edwards’s
ability to understand, remember, and carry out instructions was affected by
the impairment. AR 847. In the section of the form that is intended for the
doctor to “identify the factors (e.g., the particular medical signs, laboratory
findings, or other factors described above) that support your assessment,” Dr.
25
Jewitt only wrote “medical history and examinations.” Id. On the section to
describe Edwards’s ability to interact appropriately, Dr. Jewitt checked boxes
but failed to provide a detailed explanation to support his conclusions. AR 848.
Instead, Dr. Jewitt wrote, “Poor completion skills. Irritability is variable, but
always present.” Id. The factors he identified to support this assessment were
“history and many medical/mental health visits.” Id. (emphasis in original). The
ALJ properly discounted this opinion because Dr. Jewitt failed to provide any
specific findings, appointment dates, or any other information to support or
explain why he checked certain boxes.
Overall, the ALJ properly discounted Dr. Jewitt’s 2017 opinion. The ALJ
provided three specific reasons that were supported by substantial evidence in
the record. Plus, Dr. Jewitt’s opinion was conclusory. Also, it should be noted
that the ALJ did not disregard Dr. Jewitt’s opinions in their entirety, she only
gave his 2017 opinion little weight and relied on his other opinions throughout
her discussion. AR 14-15; see also Casey v. Astrue, 503 F.3d 687, 692 (8th Cir.
2007) (noting the ALJ did not reject all of the treating source’s opinions). Thus,
the court finds that the ALJ did not err in discounting Dr. Jewitt’s 2017
opinion.
II.
STEP FOUR
At step four, the Commissioner must determine the claimant’s RFC,
which is the most the claimant can do despite the claimant’s mental and
physical limitations. Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004)
(citing 20 C.F.R. § 404.1545(a)(1)). “The burden of persuasion to prove
26
disability and to demonstrate RFC remains on the claimant[.]” Stormo v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). The claimant’s RFC is
determined based on all relevant evidence in the record, including medical
records, observations of treating physicians, and the individual’s own
description of her limitations. Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir.
2006). But the ALJ’s finding “must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace.” Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). The ALJ’s RFC evaluation must
include a “narrative discussion” that cites specific medical and non-medical
evidence and explains how the evidence supports his conclusions. SSR 96–8p,
1996 WL 374184 (July 2, 1996). Also, the ALJ must explain how any material
inconsistencies or ambiguities in the record were considered and resolved. Id.
The ALJ determined Edwards had the residual functional capacity to do
sedentary work with some limitations. AR 17. In determining Edwards’s RFC,
the ALJ considered Edwards’s symptoms and whether they were consistent
with the objective medical evidence, as well as the opinion evidence of several
physicians. AR 17-21. Edwards argues that the ALJ should have issued a more
restrictive RFC assessment that incorporated Edwards’s subjective complaints
of needing to change positions due to pain and her need to use assistive
devices. Docket 17 at 37-38.
A.
Edwards’s Subjective Complaints
“Symptoms such as pain are considered along with any impairments
when determining a claimant's RFC.” Brown, 390 F.3d at 541. In determining
27
whether to fully credit a claimant’s subjective complaints, such as pain, the
ALJ engages in a two–step process: (1) is there an underlying medically
determinable physical or mental impairment that could reasonably be expected
to produce the claimant’s symptoms; and (2) if so, the ALJ evaluates the
claimant’s description of the intensity and persistence of those symptoms to
determine the extent to which the symptoms limit the claimant’s ability to
work. See SSR 16-3p, 2016 WL 1020935 (Mar. 16, 2016); 20 C.F.R.
§ 404.1529.
In evaluating the second step of the analysis, an ALJ must consider
several factors: (1) the claimant's daily activities; (2) the duration, frequency,
and intensity of the condition; (3) dosage, effectiveness, and side effects of
medication; (4) precipitating and aggravating factors; (5) functional restrictions;
(6) relevant work history; and (7) the lack of objective medical evidence to
support the complaints. Wildman, 596 F.3d at 968 (citations omitted) (factors
referred to as “Polaski factors”). A claimant’s subjective complaints may be
discredited only if they are inconsistent with the evidence as a whole. Id. The
court will “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 omitted),
though the ALJ does not need to explicitly discuss each of the factors
above. Wildman, 596 F.3d at 968 (citing Goff v. Barnhart, 421 F.3d 785, 791
(8th Cir. 2005)).
28
Here, the ALJ found Edwards had a history of osteoarthritis of the knees,
degenerative disc disease, asthma, plantar fasciitis bilaterally, and obesity that
could reasonably be expected to produce her symptoms in accordance with the
first step above. AR 18, 21. The ALJ found some of Edwards’s subjective
complaints to not be credible based on the ALJ’s conclusion that Edwards’s
alleged functional restrictions were disproportionate to the clinical findings in
the medical evidence of the record. AR 21.
Edwards contends that the ALJ erred in rejecting Edwards’s “credibility
concerning her need to change positions due to pain and her need to use
crutches[.]” Docket 17 at 38. Edwards first alleges the ALJ never addressed or
analyzed Edwards’s use of a cane and walker or her need to change positions
in the ALJ’s decision. Id. In regard to the use of a cane and walker, Edwards’s
allegation is baseless. The ALJ addressed Edwards’s use of a cane, walker, and
crutches throughout her RFC determination. See AR 18-20. The ALJ discussed
Edwards’s hearing testimony where she stated she used crutches for
ambulation and sometimes used a walker. AR 18. Additionally, the ALJ noted
the use of assistive devices in various medical treatment notes. See id.
(Edwards stated she used a cane for ambulation at a July 2009 appointment);
AR 19 (Edwards used a cane for assistance at a February 2010 appointment
and used crutches at a November 2010 appointment); AR 20 (Edwards used
bilateral quad canes for assistance at September 2012 appointment). Thus, the
court rejects Edwards’s allegation that the ALJ never considered Edwards’s use
of assistive devices in her RFC determination.
29
In regard to Edwards’s need to change positions, Edwards is correct.
Nowhere in the ALJ’s decision is Edwards’s need to change position specifically
mentioned or analyzed. The ALJ, however, discussed the symptom of pain
throughout her RFC determination. See AR 18-21. For example, the ALJ
discussed Edwards’s diagnosis of fibromyalgia. AR 18 (finding Edwards’s
fibromyalgia was a non-severe condition). Edwards acknowledges that her need
to change positions is due to pain. Docket 17 at 38-39. Pain is a symptom of
fibromyalgia. Additionally, the ALJ analyzed Edwards’s pain complaints
contained in medical reports and hearing testimony in reference to her knees,
hip, and back. AR 18-21. Also, the ALJ considered Edwards’s daily activities
which included Edwards’s testimony that she moves around minimally during
the day and spends much of her time on the couch because of her pain. AR 18
(referencing hearing testimony at AR 43 and 46). Thus, the court does not
agree with Edwards’s argument that the ALJ never addressed or analyzed
Edwards’s need to change position. The court views the ALJ’s discussion of
Edwards’s general pain complaints to encompass her need to change positions.
Second, Edwards argues the ALJ did not provide any reasons or specific
inconsistencies in the record to support her rejection of Edwards’s complaints.
Docket 17 at 38. Edwards argues the ALJ did not give “any reasons” for
rejecting Edwards’s need to use assistive devices. Id. But nowhere in the ALJ’s
decision does the ALJ state that she is rejecting Edwards’s use of these devices
in its entirety. The ALJ did not need to provide a reason for rejecting this
subjective complaint if the ALJ, in fact, did not reject the complaint. As is
30
evident throughout the ALJ’s RFC determination, the ALJ likely considered
Edwards’s use of the assistive devices because she mentioned them five times.
AR 18-20. Additionally, the ALJ gave great weight to the consulting state
agency doctors. AR 21. In his report, Dr. Erickson acknowledged Edwards’s use
of assistive devices and stated the such use would not affect Edwards’s ability
to perform sedentary work. AR 100. Thus, the ALJ’s RFC determination, which
is limited to sedentary work, included Edwards’s use of assistive devices.
Edwards also argues the ALJ did not give “any reasons” why Edwards’s
testimony about her inability to sit, stand, or walk for more than ten minutes
was rejected. Docket 17 at 38. But the ALJ did not disregard Edwards’s
complaints of pain in their entirety. The ALJ stated that some of Edwards’s
alleged functional restrictions were “disproportionate” to the medical evidence
in the record. AR 21. The ALJ provided two reasons for discrediting some of
Edwards’s subjective complaints. AR 20. First, the ALJ stated the treatment
notes, examination findings, and objective diagnostic testing results did not
support Edward’s alleged limitations. Id.; see Bradley v. Astrue, 528 F.3d 1113,
1115 (8th Cir. 2008) (upholding the ALJ’s adverse credibility finding of the
claimant based on the lack of additional evidence corroborating the claimant’s
subjective complaints).
This reasoning is one of the factors the ALJ can consider in assessing
Edwards’s complaint, i.e., the “absence of objective medical evidence to support
the complaints.” Brown, 390 F.3d at 541. Here, Edwards cannot point to any
medical evidence that support’s her subjective complaint that her pain was so
31
severe that she must change positions often. The only evidence in the record
about this alleged limitation is Edwards’s own testimony at the administrative
hearing. AR 43.
Another factor the ALJ can consider is the duration, frequency, and
intensity of the condition. Brown, 390 F.3d at 541. The evidence submitted by
Edwards pertaining to her fibromyalgia pre-dated the relevant time period. AR
18. There are medical records that mention Edwards’s complaints of
fibromyalgia during the relevant time period. See AR 510, 546. But nowhere in
the medical record does Edwards make the specific complaint her pain
causes her to change her position every ten minutes to any treating
provider. See Reece v. Colvin, 834 F.3d 904, 909 (8th Cir. 2016) (holding a lack
of complaints to a treating physician detracts from a claimant’s allegations of a
disabling impairment). For example, at an orthopedic consultation, Edwards
complained of her legs “going numb” and falling on a regular basis, but failed
to mention she needed to constantly change position due to pain. AR 359; see
also AR 441-47 (primary care appointment with Dr. Becker where Edwards
complained of other chronic pain symptoms but failed to mention her need to
change positions). Also, Edwards met with Dr. Herbel for 45-50 minute
counseling sessions, yet Dr. Herbel’s notes never mentioned Edwards’s need to
get up and move around every ten minutes due to pain. See AR 390, 391, 393,
402, 404-05, 421-22, 425-26, 429, 431, 434-35, 436-37, 440-41, 455-46, 45657, 460, 464, 481-82, 495-96, 504, 518-19, 538, 551, 552.
32
In contrast, substantial evidence in the record supports the ALJ’s
decision to not include this specific complaint related to pain. Dr. Erickson, a
consulting physician, noted Edwards complained of “pain all over her body” yet
was never able to quantify the problem to any of her providers. AR 99.
Furthermore, he also noted that her neurology reports were “essentially
normal” and her provider noted she “tends to hang on to pain and aches from
injuries for quite a while.” Id. (referencing AR 463, 648). Dr. Erickson’s
opinions are supported by other medical evidence in the record, which was
discussed by the ALJ (AR 19-20). At Edwards’s MRI scan on November 26,
2010, there was no significant canal or foraminal stenoses, though there were
mild degenerative disc changes and facet acropachy. AR 666. Edwards was also
fitted for a back support on November 3, 2010. AR 729. Edwards stated that
she believed the back support would help with her back pain. Id. Edwards’s
neurology report from April 6, 2011, showed her lumbar spine MRI and hip
films were “unremarkable.” AR 463. The neurologist, Laurie A. Weisensee,
opined that she did not find any neurologic concerns. Id.
In addition to those medical reports cited by the ALJ, there are other
medical reports that support the ALJ’s determination. For example, Edwards’s
radiology scans showed Edwards’s lumbar spine was without fracture or
malalignment and her bilateral hip scans were unremarkable. AR 667, 669-70.
Overall, substantial evidence in the record supports the ALJ’s decision to reject
Edwards’s complaint because of the lack of complaints to her treating providers
and lack of other supporting medical evidence. The court will not reverse the
33
ALJ’s decision based solely on Edwards’s medically unsupported and
inconsistent testimony that she must change positions due to pain.
Another reason provided by the ALJ was that there were “a number of
inconsistencies” that detracted from Edwards’s allegation that her condition
was disabling. AR 20. Substantial evidence in the record supports the ALJ’s
position that there were inconsistencies regarding Edwards’s need to change
position due to pain. “[I]inconsistencies between subjective complaints of pain
and daily living patterns may . . . diminish credibility.” Casey v. Astrue, 503
F.3d 687, 696 (8th Cir. 2007) (alterations in original) (internal quotations
omitted). Here, the ALJ considered some of the other Polaski factors in
assessing Edwards’s complaint. AR 18-21.
For example, the ALJ considered the functional restrictions. At the
hearing, Edwards testified that she can only sit for a total of ten minutes before
she must move. AR 43. Edwards’s testimony is inconsistent with her two longdistance road trips to California and Texas (AR 47-49). At the hearing, the ALJ
asked Edwards questions about her trips that allowed the ALJ to consider the
Polaski factors. Id. The ALJ asked Edwards about the purposes of the trips,
who drove, how many days the drives took, how many days she stayed at each
destination, how often they stopped, why they stopped, and where they stayed.
Id. Though Edwards testified that they took many stops during the road trip
(AR 47, 49), it is unlikely that they stopped every ten minutes for Edwards to
get up and move around. The ALJ could use this inconsistency in judging the
credibility of Edwards’s complaint.
34
Next, the ALJ considered Edwards’s daily activities. AR 18. In assessing a
claimant’s daily activities, “the ALJ must consider the ‘quality of the daily
activities and the ability to sustain activities, interest, and relate to others over
a period of time and the frequency, appropriateness, and independence of the
activities.’ ” Hendrickson v. Berryhill, No. 4:17-CV-04173-VLD, 2018 WL
5984837, at *28 (D.S.D. Nov. 14, 2018) (quoting Wagner, 499 F.3d at 852)).
The ALJ considered Edwards’s use of assistive devices, how she got up and
took care of her dog, her minimal movement during the day, and how much of
her time consisted of sitting on the couch. AR 18. The ALJ considered
Edwards’s caring of her dog, which consisted of feeding, letting the dog out in
the fenced yard, and picking up dog feces. AR 46, 52, 53. The ALJ permissibly
could have found all of these activities to be inconsistent with Edwards’s
complaints. See, e.g., Ponder v. Colvin, 770 F.3d 1190, 1195-96 (8th Cir. 2014)
(holding the claimant’s ability to perform light housework, wash dishes, handle
money, leave her house, shop for groceries, watch TV, attend church, and visit
family undermined her assertion of total disability).
Because “the ALJ [was] in a better position to evaluate” Edwards’s
credibility, the court “will defer to her determinations as they are supported by
sufficient reasons and substantial evidence on the record as a whole.” Andrews
v. Colvin, 791 F.3d 923, 929 (8th Cir. 2015). Although the ALJ could have been
more thorough in her reasoning for discounting Edwards’s credibility, “a
‘deficiency in opinion-writing is not a sufficient reason to set aside an ALJ's
finding where the deficiency [has] no practical effect on the outcome of the
35
case.’ ” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (alteration in
original) (internal citations omitted). Even though this court may have decided
this case differently, the court finds that the ALJ's determination that Edwards
was not fully credible is supported by substantial evidence in the record. Thus,
the court finds the ALJ did not err in her credibility determination.
B.
More Restricted RFC
Lastly, Edwards argues the ALJ should have issued a more restricted
RFC that included the use of two handheld assistive devices and the need to
frequently change positions. Docket 17 at 38. As discussed above, the ALJ did
take into consideration Edwards’s use of assistive devices and her complaints
of pain. Edwards fails to recognize that the ALJ’s decision regarding her RFC
was influenced by the ALJ’s decision that her limitations (need to change
position) were disproportionate to the medical evidence in the record. See
Wildman, 596 F.3d at 964; Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.
2005).
Edwards contends that if the ALJ would have included those limitations,
it would have “seriously erode[d] sedentary work.” Docket 17 at 38. Edwards
cites a social security ruling addressing an RFC assessment for less than a full
range of sedentary work. Id. at 38-39 (citing SSR 96-9p; 1996 WL 374185, at
*1 (July 2, 1996)). “To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need for a
hand-held assistive device to aid in walking or standing, and describing the
36
circumstances for which it is needed . . . .” SSR 96-9p, 1996 WL 374185, at
7.
The Eighth Circuit has not addressed what precise documentation a
claimant must provide to establish the limitation of a medically required handheld assistive device. In non-precedential decisions, the Third, Seventh, and
Tenth Circuits have required an unambiguous opinion from a physician stating
the circumstances in which the assistive device is medically necessary. See,
e.g., Tripp v. Astrue, 489 F. App’x 951, 954 (7th Cir. 2012) (finding the treating
physician’s statement that the claimant “does need a crutch” lacked the
specificity to establish whether the crutch was a medical necessity); Staples v.
Astrue, 329 F. App’x 189, 191-92 (10th Cir. 2009) (finding the treating
physician’s statement that the claimant “still uses a cane to walk” as
insufficient to establish medical necessity); Howze v. Barnhart, 53 F. App’x
218, 222 (3d Cir. 2002) (finding the evidence did not establish the claimant’s
cane was medically necessary when the treating physician provided a “script”
for a cane and checked boxes for “hand-held assistive device medically required
for ambulation” in a report).
The Eighth Circuit has noted the difference between a physicianprescribed assistive device and a claimant’s self-adopted assistive device. See
Toland v. Colvin, 761 F.3d 931, 936 (8th Cir. 2014). In Toland, the Eighth
Circuit held that neither the treating physician’s treatment notes nor other
medical evidence in the record provided a medical justification for including a
medically required hand-held assistive device in the claimant’s RFC. Id. at 936.
37
The court considered the fact that there was no evidence in the record that any
physician prescribed the claimant a cane or other assistive device for walking.
Id. The court acknowledged the fact that the claimant admitted the cane was
not prescribed by doctor. Id.
Here, the ALJ properly considered and weighed the available medical
evidence and Edwards’s testimony in the ALJ’s RFC determination. The record
lacks any medical documentation establishing the need of Edwards’s assistive
devices to aid in walking or standing or a description of the circumstances for
which it is needed. The record contains numerous references to Edwards’s use
of crutches, canes, and walkers. But all of these mentions are traceable to
Edwards’s self-reports and to physicians’ observations that she presented with
an assistive device.
Edwards referenced three appointments/consultations contained in the
record. Docket 17 at 38 (citing AR 500, 501, 495, 475, 469, 462). Edwards
does “utilize[] canes or ‘forearm crutches’ to assist in ambulation and prevent[]
falls.’ ” Id. But that does not meet the standard laid out in Social Security
Ruling 96-9p. A physician’s observation of a patient’s use of an assistive device
does not equate to medical documentation that establishes the need for the
device and a description of the circumstances for which it is needed.
At pages 500-501 of the record, Dr. Fox observed Edwards’s use of the
devices during his physical examination. AR 500. He referred Edwards to
physical therapy for a replacement crutch but only after he stated Edwards’s
primary physician, Dr. Becker, did not request a replacement crutch for
38
Edwards and Edwards stated she used crutches for the last six years. AR 501;
see AR 495 (physical therapy consultation request). Dr. Fox did not provide a
description of when Edwards was to use the crutches. AR 500-01. At pages
471-475 of the record, Dr. Becker noted Edwards’s complaint of recent falls.
AR 472. At that time, Dr. Becker did not mention any use of assistive devices
or a recommendation for such use. See AR 471-75. Instead, a nurse at the
appointment referred Edwards to physical therapy for the issuance of a walker
after Edwards complained of a fall. AR 479; see AR 469 (physical therapy
consultation request). Lastly, at page 462 of the record, Dr. Weisensee, a
neurologist, observed Edwards’s use of the assistive devices in her physical
examination and history of present illness. AR 462-63. Thus, the lack of
medical documentation establishing the need for such devices supports the
ALJ’s decision to not include this limitation in her RFC determination.
Additionally, in light of the Eighth Circuit’s decision noting the difference
between a prescribed and self-adopted use of an assistive device, Edwards
failed to present medical evidence that showed the assistive devices were
prescribed. At the hearing and in her brief, Edwards stated the devices were
prescribed. AR 41; Docket 17 at 38. Edwards provides two citations to the
record to support her position that her crutches were prescribed. Docket 17 at
38 (citing AR 469, 495). The cited medical records are referrals to physical
therapy for the issuance of some assistive devices, not prescriptions. The first
referral was by Dr. Fox on October 8, 2010, and was for a replacement of a
missing crutch. AR 501. The second referral was by a nurse during a primary
39
care appointment for a walker after Edwards complained of falling. AR 469; see
AR 479 (nurse’s note). But after reviewing the medical notes, the court cannot
say that the ALJ erred in not finding those notes were in fact prescriptions for
the assistive devices.
The record also does not contain Edwards’s original prescription. At her
October 8, 2010 consultation with Dr. Fox, Edwards told Dr. Fox she had been
using forearm crutches for the last six years. AR 500. The record does not
contain any medical evidence from 2004 to confirm the reason for Edwards’s
initial use of forearm crutches. Additionally, the court examined all medical
records dating back to April 8, 2009 (AR 651-52). In these medical notes,
Edwards’s use of assistive devices is observed. But her use during that time
does not provide any basis for which this court can reverse the ALJ’s decision
not to include assistive devices as a limitation.
Overall, substantial evidence in the record supports the ALJ’s implicit
determination that Edwards’s RFC should not include the limitation of
medically required hand-held assistive devices. See Tripp, 489 F. App’x at 954.
The record lacks any medical documentation that establishes the need for a
hand-held device to aid in walking or standing and describes the
circumstances for which it is needed. The record only contains medical
evidence of the doctors’ observations of Edwards’s use of such devices. In other
words, while Edwards’s knees and hip pains are well-documented, there is no
evidence that her use of the assistive devices is “medically required,” as
opposed to independently adopted by Edwards. See Richmond v. Berryhill, No.
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16-CV-140-LRR, 2017 WL 4074633, at *3 (N.D. Iowa Sept. 14, 2017). Thus, the
ALJ’s exclusion of this limitation, and the limitation of Edwards’s need to
change position, was proper.
CONCLUSION AND ORDER
The court finds that the ALJ’s finding was supported by substantial
evidence in the record as a whole. Thus,
IT IS ORDERED that the decision of the Commissioner is AFFIRMED.
DATED March 22, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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