Young v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

)

WILLIAM YOUNG, )

)

Plaintiff, )

)

v. )

) Case No. 4:18-CV-00532-NCC

ANDREW M. SAUL,1 )

Commissioner of Social Security )

)

Defendant. )

MEMORANDUM AND ORDER

This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision

of the Commissioner denying the application of William Young (“Plaintiff”) Disability

Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

Plaintiff has filed a brief in support of the Complaint (Doc. 16) and Defendant has filed a brief in

support of the Answer (Doc. 24). The parties have consented to the jurisdiction of the

undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 8).

I. PROCEDURAL HISTORY

Plaintiff filed his application for DIB on November 7, 2014 (Tr. 489-90). Plaintiff was

initially denied on February 6, 2015 and Plaintiff filed a Request for Hearing before an

Administrative Law Judge (“ALJ”) on February 13, 2015 (Tr. 421-29). After a hearing, by

decision dated January 30, 2017, the ALJ found Plaintiff not disabled (Tr. 302-21). On February

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Andrew M. Saul shall be substituted for Acting Commissioner

Nancy A. Berryhill as the defendant in this suit. No further action needs to be taken to continue

this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. §

405(g).

14, 2018, the Appeals Council denied Plaintiff’s request for review (Tr. 1-7). As such, the ALJ’s

decision stands as the final decision of the Commissioner.

II. DECISION OF THE ALJ

The ALJ determined that Plaintiff meets the insured status requirements of the Social

Security Act through March 31, 2019, and that Plaintiff has not engaged in substantial gainful

activity since February 18, 2014, the alleged onset date (Tr. 307). The ALJ found Plaintiff has

the severe impairment of degenerative disc disease of the cervical spine, but that no impairment

or combination of impairments met or medically equaled the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 307-08). After considering the

entire record, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to

perform light work2 with the following limitations (Tr. 308). He can lift up to 20 pounds

occasionally and can lift or carry up to 10 pounds frequently (Tr. 308-09). He can stand and/or

walk for about six hours in an eight-hour work day with normal breaks (Tr. 309). He can

occasionally climb ramps or stairs, but never climb ladders, ropes or scaffolds (Id.). He can

occasionally balance, stoop, kneel, and crouch, but can never crawl (Id.). He should avoid

unprotected heights and exposure to hazardous machinery (Id.). The ALJ found Plaintiff not

capable of performing any past relevant work but that other jobs exist in significant numbers in

the national economy that Plaintiff can perform including retail sales, dining attendant, and loss

prevention (Tr. 316-17). Thus, the ALJ concluded that a finding of “not disabled” was

2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in

this category when it requires a good deal of walking or standing, or when it involves sitting

most of the time with some pushing and pulling of arm or leg controls. To be considered capable

of performing a full or wide range of light work, you must have the ability to do substantially all

of these activities. If someone can do light work, we determine that he or she can also do

sedentary work, unless there are additional limiting factors such as loss of fine dexterity or

inability to sit for long periods of time.” 20 C.F.R. §§ 416.967(b), 404.1567.

appropriate (Tr. 317). Plaintiff appeals, arguing a lack of substantial evidence to support the

Commissioner’s decision.

III. LEGAL STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for

determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails

to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is

determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting

Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the

claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.

20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20

C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as

“any impairment or combination of impairments which significantly limits [claimant’s] physical

or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may

be terminated at step two only when the claimant’s impairment or combination of impairments

would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484

F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.

2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

Third, the ALJ must determine whether the claimant has an impairment which meets or

equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).

If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is

per se disabled without consideration of the claimant’s age, education, or work history. Id.

Fourth, the impairment must prevent the claimant from doing past relevant work. 20

C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to

establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step

four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ

will review a claimant’s RFC and the physical and mental demands of the work the claimant has

done in the past. 20 C.F.R. § 404.1520(f).

Fifth, the severe impairment must prevent the claimant from doing any other work. 20

C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the

Commissioner has the burden of production to show evidence of other jobs in the national

economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874

n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The

ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.

Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931

n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377

F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate

RFC remains on the claimant, even when the burden of production shifts to the Commissioner at

step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s

decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.

Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but

is enough that a reasonable mind would find it adequate to support the Commissioner’s

conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.

Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

It is not the job of the district court to re-weigh the evidence or review the factual record

de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the

quantity and quality of evidence is enough so that a reasonable mind might find it adequate to

support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing

McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of

the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).

Thus, an administrative decision which is supported by substantial evidence is not subject to

reversal merely because substantial evidence may also support an opposite conclusion or because

the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.

IV. DISCUSSION

In his appeal of the Commissioner’s decision, Plaintiff raises three issues. First, Plaintiff

argues that the RFC is not supported by substantial evidence (Doc. 16 at 3-8). Second, Plaintiff

asserts that the ALJ erred in failing to properly evaluate the opinion of Dr. Sean Ragain, M.D.,

Plaintiff’s treating physician (Id. at 8-12).3 Third, Plaintiff argues that the ALJ erred in failing to

properly apply “the Eighth Circuit pain standard” by failing to provide specific reasons for his

evaluation of the credibility of Plaintiff’s subjective pain complaints (Id. at 12-14). For the

following reasons, the Court finds that Plaintiff’s arguments are without merit, and that the

ALJ’s decision is based on substantial evidence and is consistent with the Regulations and case

law.

A. Additional Evidence Submitted to the Appeals Council

As a preliminary matter, Plaintiff appears to assert that the Appeals Council failed to

properly consider medical records submitted after the ALJ’s decision (See Doc. 16 at 6). Indeed,

the Appeals Council must consider additional evidence that is new, material, and related to the

period on or before the date of the ALJ’s decision as if it was presented to the ALJ. 20 C.F.R. §

404.970(b); Whitney v. Astrue, 668 F.3d 1004, 1006 (8th Cir. 2012). Plaintiff submitted records

3 The parties do not dispute that Dr. Ragain is Plaintiff’s treating physician (See Doc. 16 at 8;

Doc. 24 at 7).

to the Appeals Council from St. Louis Neurosurgery LLC dated March 5, 2015 and from STL

Ear Nose Throat Health dated March 23, 2015 (collectively, the “2015 records”) (Tr. 337-44);

records from SSM Medical Group dated December 13, 2016 (the “2016 records”) (Tr. 322-35);

and records from SSM Medical Group dated February 16, 2017 to September 7, 2017, SSM

Health St. Clare Fenton dated March 1, 2017 to September 28, 2017, St. Clare Surgery Center

dated March 6, 2017 to October 31, 2017, STL Neurosurgery dated March 21, 2017 to

September 28, 2017, SSM Physical Therapy dated April 5, 2017 to November 22, 2017, and

Christian Hospital dated September 19, 2017 to September 20, 2017 (collectively, the “2017

records”) (Tr. 8-297).

The Court finds that the Appeals Council properly addressed this additional evidence.

The Appeals Council reviewed the records that pre-date the ALJ’s decision, the 2015 records and

the 2016 records, and declined to consider these records or exhibit this evidence (Tr. 2). In so

doing, the Appeals Council found the 2015 records not to be new because they are a copy of

records already in the file (Id.). Upon review, the Court finds that the Appeals Council should

not have considered these records (Compare Tr. 340-44 with Tr. 692-93, 695-97). The Appeals

Council determined that the 2016 records did not show a reasonable probability that they would

change the outcome of the decision (Tr. 2). Indeed, the Court finds the records not to be material

because they are largely cumulative of other records of the file as they consist of treatment notes

and medication lists from a single visit in December 2016 (Tr. 322-35). While Plaintiff is noted

in the records as being positive for back pain, the visit largely entailed medication management

and the request for medication refills (Tr. 322, 325). Hinchey v. Shalala, 29 F.3d 428, 432-33

(8th Cir. 1994) (“To be material, new evidence must be non-cumulative, relevant, and probative

of the claimant's condition for the time period for which the benefits were denied, and there must

be a reasonable likelihood that it would have changed the Secretary’s determination.”).

The Appeals Council also reviewed the treatment records that post-date the ALJ’s

decision, the 2017 records, finding them not to relate to the period at issue (Tr. 2). The Appeals

Council may be obligated to consider additional evidence that post-dates the ALJ decision, “if it

relates to the claimant’s condition on or before the ALJ’s decision.” Cunningham v. Apfel, 222

F.3d 496, 502 (8th Cir. 2012). Of particular concern to Plaintiff is the March 1, 2017 MRI

indicating mild left lateral recess stenosis at L5-S1 and a disc bulge with an annular tear at L4-L5

(Tr. 187). However, the Court finds that the 2017 records do not relate to the disability period as

they concern “post decision deterioration of a pre-existing condition.” Eidoen v. Apfel, 221 F.3d

1342 (8th Cir. 2000) (“Material evidence is evidence that relates to the claimant's condition for

the time period for which benefits were denied, and not to after-acquired conditions or post-

decision deterioration of a pre-existing condition.”). See also Breyfogle v. Colvin, No. 2:13-CV-

59 CEJ, 2014 WL 4230898, at *10 (E.D. Mo. Aug. 26, 2014) (finding the Appeals Council did

not err in giving no consideration to additional evidence concerning plaintiff’s lumbar spine

because it was not material as it deals with an after-acquired or a deteriorating condition).

B. Evaluation of Plaintiff’s Subjective Complaints

The Court will next address the consistency of Plaintiff’s complaints with the record as

the ALJ’s evaluation of Plaintiff’s symptoms was essential to the determination of other issues,

including Plaintiff’s RFC.4 See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[The

plaintiff] fails to recognize that the ALJ’s determination regarding her RFC was influenced by

4 As noted by Defendant, Social Security Ruling 16-3p eliminated the term “credibility” from the

analysis of subjective complaints. However, the regulations remain unchanged; “Our regulations

on evaluating symptoms are unchanged.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20

C.F.R. §§ 404.1529, 416.929.

his determination that her allegations were not credible.”) (citing Tellez v. Barnhart, 403 F.3d

953, 957 (8th Cir. 2005)). In assessing a claimant’s credibility, the ALJ must consider: (1) the

claimant’s daily activities; (2) the duration, intensity, and frequency of pain; (3) the precipitating

and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any

functional restrictions; (6) the claimant’s work history; and (7) the absence of objective medical

evidence to support the claimant’s complaints. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.

2008); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “The credibility of a claimant’s

subjective testimony is primarily for the ALJ to decide, not the courts.” Pearsall v. Massanari,

274 F.3d 1211, 1218 (8th Cir. 2001). “If an ALJ explicitly discredits the claimant’s testimony

and gives good reason for doing so, [a court] will normally defer to the ALJ’s credibility

determination.” Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). See also Halverson v.

Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).

Plaintiff asserts that the ALJ failed to evaluate the credibility of Plaintiff’s subjective pain

complaints (Doc. 16 at 12-14). For the following reasons, the Court finds that the reasons

offered by the ALJ in support of his analysis of Plaintiff’s subjective complaints are based on

substantial evidence.

First, the ALJ found Plaintiff’s statements concerning the intensity, persistence and

limiting effects of his alleged symptoms not entirely consistent with the medical evidence (Tr.

310). An ALJ may determine that “subjective pain complaints are not credible in light of

objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir.

2006). The ALJ supported his conclusion regarding the credibility of Plaintiff’s subjective

complaints in a thorough review of the medical evidence, encompassing nearly four full pages.

The ALJ detailed Plaintiff’s impairment history, noting that on February 14, 2014, the alleged

onset date, Plaintiff was admitted to the hospital after a fall (Tr. 310, 590). A CT Scan showed a

fracture through the anterior-inferior aspect of the C3 vertebral body and an MRI revealed

abnormal signal intensity in the spinal cord from C4-6, paravertebral fluid and edema from C3-5,

and degenerative changes at C3-7 (Tr. 310, 585). Plaintiff underwent a C3-4, 6-7 anterior

cervical corpectomy and fusion and a C5 corpectomy on February 18, 2014 (Tr. 310, 574, 584-

86). Plaintiff was discharged on February 23, 2014, with instructions to continue physical,

occupational, and speech therapy and with prescriptions including Medrol DosePak and Norco

(Tr. 310-11, 590-91). Plaintiff followed-up with his neurosurgeon Dr. Armond Levy, M.D. (“Dr.

Levy”) in both March and April of 2014 but was then directed to establish care with a primary

care physician and return in six months (Tr. 311, 389, 574-581). See, e.g. Tr. 578 (“NEEDS to

find PCP for general health maintanence [sic], information given to patient.”). Plaintiff

established care with a primary care physician, Dr. Sean Ragain, M.D., on November 20, 2014

(Tr. 311, 608-621). At the time, as the ALJ noted, Plaintiff reported chronic pain and numbness

in his left arm, both legs and in the groin but was only on Elavil as “he had stopped the

Gabapentin and was no longer prescribed narcotic pain medication” (Tr. 311, 609). Dr. Ragain’s

treatment notes subsequently indicated relatively normal physical examinations (Tr. 311-14, 611,

645, 661. 679, 718, 739). For example, Dr. Ragain repeatedly indicated “grossly normal”

musculoskeletal findings (See, e.g, Tr. 645). Similarly, by March of 2015, x-rays showed a

“fairly solid fusion 3-4, 6-7, progressive fusion 4-6 with stable alignment and hardware,

indicating mild to moderate degenerative changes but fairly normal alignment” (Tr. 313; 693).

To the extent the Plaintiff identifies records that support Plaintiff’s allegations to the contrary,

“[i]f substantial evidence supports the decision, then we may not reverse, even if inconsistent

conclusions may be drawn from the evidence, and even if we may have reached a different

outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).

Second, the ALJ also found that Plaintiff “has not generally received the type of medical

treatment one would expect for a totally disabled individual” (Tr. 314). Specifically, the ALJ

noted that Plaintiff sought treatment primarily from his primary care physician despite

instructions to return to his neurosurgeon for follow up (Tr. 314, 739). Further, as indicated by

the ALJ, Plaintiff’s visits to his primary care physician were routinely scheduled every three

months and, by June of 2016, visits were planned every six months (Tr. 314, 739). An ALJ may

properly consider Plaintiff’s conservative and limited treatment history in his determination of a

plaintiff’s credibility. Kamann v. Colvin, 721 F.3d 945, 950-51 (8th Cir. 2012) (noting that the

ALJ properly considered that the claimant was seen “relatively infrequently for his impairments

despite his allegations of disabling symptoms”); Casey v. Astrue, 503 F.3d 687, 693 (8th Cir.

2007) (noting that the claimant sought treatment “far less frequently than one would expect

based on the [symptoms] that [he] alleged”).

The ALJ also found that Plaintiff’s limited treatment “has been generally successful” in

controlling Plaintiff’s allegedly disabling symptoms (Tr. 314). Plaintiff testified that he tried

injections with minimal success and discontinued them, in part due to cost (Tr. 310, 387).

Indeed, the record reflects that Plaintiff’s received one injection but that, by June of 2016, only

Plaintiff’s prescription for Ibuprofen was refilled (Tr. 314, 716, 739). “If an impairment can be

controlled by treatment or medication, it cannot be considered disabling.” See Wildman, 596

F.3d at 965 (quoting Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)). See also cf. Singh

v. Apfel, 222 F.3d 448, 453 (8th Cir. 2000) (repeated and consistent doctor visits coupled with

many diagnostic tests, taking numerous prescription medications and use of many pain treatment

modalities supported claimant’s subjective complaints of pain).

Additionally, the ALJ specifically addressed whether Plaintiff suffered any side effects

from his medication, finding the Plaintiff “experienced side effects including cotton mouth and

drowsiness” (Tr. 310). Plaintiff testified that he experienced “hot mouth, really bad” and

drowsiness as side effects from his medication (Tr. 379). In an October 22, 2015 Medical

Source Statement, addressed in more detail below, Dr. Sean Ragain indicated that Plaintiff’s

medication “can cause drowsiness, confusion [and] weakness” (Tr. 638). Therefore, the ALJ

properly considered any side effects Plaintiff may have to his medication. Cf. Noah v. Astrue,

No. 2:10CV56LMB, 2011 WL 4435086 at *9 (remanding the ALJ’s decision, in part, because

the ALJ did not explain how plaintiff’s testimony regarding his limitations and the side effects of

his medications was inconsistent with the record).

Third, the ALJ determined that Plaintiff “failed to follow-up on the recommendations

made by the treating doctor, which suggests that the symptoms may not have been as serious as

has been alleged in connection with this application and appeal” (Tr. 314). Plaintiff’s treating

physician directed Plaintiff to follow up with his neurosurgeon but Plaintiff did not (Tr. 314,

716). The record also reflects that Plaintiff failed to engage in regular exercise despite his

primary care physician recommending that course of treatment (Tr. 314, 716, 739). The ALJ

may consider a failure to follow a course of treatment in determining whether a claimant may

receive benefits. 20 C.F.R. §§ 404.1530, 416.930 (individual who fails to follow prescribed

treatment without a good reason will not be found disabled). See also Wright v. Colvin, 789 F.3d

847, 854 (8th Cir. 2015) (affirming where ALJ found that claimant’s “credibility suffered from

his refusal to take pain medication and his refusal to seek out even conservative treatments such

as physical therapy”); Wildman, 596 F.3d at 966 (noncompliance is a basis for discrediting a

claimant; when claimant was compliant with dietary recommendations his pain was under good

control; claimant’s noncompliance with a diet regimen prescribed by doctor contributed to a

negative credibility determination).

Finally, while the ALJ did not explicitly address Plaintiff’s activities of daily living in

relation to his evaluation of Plaintiff’s subjective complaints, it is clear from the opinion that the

ALJ found Plaintiff’s performance of certain tasks to be inconsistent with Plaintiff’s reports

regarding the intensity, persistence and limiting effects of his symptoms (Tr. 308-10). For

example, the ALJ noted that Plaintiff reported he was capable of managing his personal care with

some difficulty; remembering to take medication and care for his personal needs; preparing his

own meals; driving and going out alone; managing his finances; watching television; visiting

with friends and family twice a week; attending sporting events for his children; getting along

with friends, family and others; following spoken and written instructions; and using the

computer (Tr. 308, 524-31). Plaintiff also testified that, with some limitations, he was capable of

managing his personal care; preparing meals; concentrating on television shows; vacuuming;

attending sporting events for his children; driving; and shopping with his wife (Tr. 308, 369-70,

381-83, 385-86). Indeed, as noted by the ALJ, Plaintiff reported to the consultative examiner

that he was able to cook and dress himself (Tr. 308, 628). See Vance v. Berryhill, 860 F.3d 1114,

1121 (8th Cir. 2017) (“[t]he inconsistency between [the claimant’s] subjective complaints and

evidence regarding [his] activities of daily living also raised legitimate concerns about [his]

credibility.”).

In conclusion, the Court finds the ALJ evaluation of Plaintiff’s subjective complaints is

based on substantial evidence and is consistent with Regulations and case law.

C. Opinion of Treating Physician Dr. Sean Ragain, M.D.

Plaintiff also asserts that the ALJ erred in failing to properly evaluate the opinion of

Dr. Sean Ragain, M.D., Plaintiff’s treating physician. See 20 C.F. R. §§ 404.1527(c),

416.927(c);5 Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015). “A treating physician’s

opinion regarding an applicant’s impairment will be granted controlling weight, provided the

opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in the record.” Reece v. Colvin, 834

F.3d 904, 908-09 (8th Cir. 2016) (internal quotations omitted). “Although a treating physician’s

opinion is usually entitled to great weight, it ‘do[es] not automatically control, since the record

must be evaluated as a whole.’” Id. at 909 (quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th

Cir. 2000)). “A treating physician’s own inconsistency may undermine his opinion and diminish

or eliminate the weight given his opinions.” Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015)

(internal quotation marks omitted). Whether the ALJ gives the opinion of a treating physician

great or little weight, the ALJ must “give good reasons” for doing so. Prosch, 201 F.3d at 1013

(citing 20 C.F.R. § 404.1527(d)(2)).

The ALJ properly considered the opinion of Dr. Sean Ragain, M.D. (“Dr. Ragain”),

Plaintiff’s treating physician, affording the opinion “only some weight” (Tr. 315). On October

22, 2015, Dr. Ragain completed a Medical Source Statement in which he opined that Plaintiff

was capable of walking one city block, sitting for about two hours total in an eight-hour day,

standing and/or walking for less than two hours total in an eight-hour workday, occasionally

lifting up to 20 pounds, rarely lifting up to 50 pounds, rarely turning left or right, rarely looking

5 Under current regulations, a treating physician’s opinion is entitled to no special deference. See

20 C.F.R. § 404.1520c(c). These regulations were effective as of March 27, 2017. 20 C.F.R. §

404.1527. However, Plaintiff’s claim was filed on November 7, 2014, so the old regulations

apply.

up, and never using the left upper extremity for fine manipulation (Tr. 638-41). Dr. Ragain

further indicated that Plaintiff would require periods of walking around during the workday

every 20 to 30 minutes for one to five minutes; the opportunity to shift positions at will from

sitting, standing or walking; unscheduled breaks hourly for 15 minutes; and the use of a

cane/assistive device for ambulation (Id.). The ALJ found Dr. Ragain’s opinion to be generally

consistent with the medical evidence except that his restrictions regarding sitting, standing,

handling, fingering and walking were not consistent with the objective medical evidence (Tr.

315). Specifically, the ALJ noted that these restrictions are not supported in Dr. Ragain’s

contemporaneous office or progress notes, again noting the largely absent clinical and laboratory

abnormalities in the record and the relatively conservative course of treatment pursued by Dr.

Ragain (Id.).

The ALJ properly considered that Dr. Ragain’s opinion was inconsistent with the record

as a whole and his own treatment notes. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4)

(“Generally, the more consistent an opinion is with the record as a whole, the more weight we

will give that opinion.”); Toland v. Colvin, 761 F.3d 931, 936 (8th Cir. 2014) (An ALJ may

properly discredit a treating physician’s opinion when the limitations provided on the medical

source statement are inconsistent with the physician’s own treatment notes). As detailed

extensively above, physical exams in the record were generally normal, Plaintiff’s treatment was

conservative in nature, and the limited, conservative treatment was largely effective in

controlling his symptoms. Of note, and also addressed thoroughly above, Dr. Ragain noted

generally normal physical findings (Tr. 314, 611, 645, 661, 679, 718, 739).

Although the ALJ did not address all of the non-controlling factors found in 20 C.F.R.

§§ 404.1527(c), 416.927(c), the ALJ is not required to cite specifically to the regulations but

need only clarify whether he discounted the opinions and why. Kientzy v. Colvin, No.

4:15CV707 JMB, 2016 WL 4011322, at *8 (E.D. Mo. July 27, 2016) (citing Grable v. Colvin,

770 F.3d 1196, 1201-02 (8th Cir. 2014)). Accordingly, the ALJ properly offered a sufficient

basis to give the opinion “non-substantial weight” in addition to “[non-]controlling weight.”

Milam, 794 F.3d at 983; Papesh, 786 F.3d at 1132 (emphasis in original) (internal citations

omitted) (finding error when the ALJ offered no basis to give an opinion non-substantial weight;

“For example, the ALJ did not find the opinion inconsistent with the record or another [of the

physician’s own] opinion[s].”).

D. RFC

Finally, Plaintiff argues that the RFC is not supported by substantial evidence (Doc. 16 at

3-8). Regulations define RFC as “what [the claimant] can do” despite his “physical or mental

limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a claimant can engage in

substantial employment, an ALJ must consider the combination of the claimant’s mental and

physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “The ALJ must

assess a claimant’s RFC based on all relevant, credible evidence in the record, ‘including the

medical records, observations of treating physicians and others, and an individual’s own

description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting

McKinney, 228 F.3d at 863). See also Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013). To

determine a claimant’s RFC, the ALJ must move, analytically, from ascertaining the true extent

of the claimant’s impairments to determining the kind of work the claimant can still do despite

his or her impairments. Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). “Although it is

the ALJ’s responsibility to determine the claimant’s RFC, the burden is on the claimant to

establish his or her RFC.” Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (internal citations

omitted).

The Eighth Circuit clarified in Lauer that “[s]ome medical evidence . . . must support the

determination of the claimant’s RFC, and the ALJ should obtain medical evidence that addresses

the claimant’s ability to function in the workplace[.]” 245 F.3d at 704 (quoting Dykes v. Apfel,

223 F.3d 865, 867 (8th Cir. 2000) (per curiam) and Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.

2000)). Thus, an ALJ is “required to consider at least some supporting evidence from a

professional.” Id. See also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (“The ALJ

bears the primary responsibility for determining a claimant’s RFC and because RFC is a medical

question, some medical evidence must support the determination of the claimant’s RFC.”);

Eichelberger, 390 F.3d at 591.

As previously discussed, the ALJ determined Plaintiff has the RFC to perform light work

with the following limitations (Tr. 308). He can lift up to 20 pounds occasionally and can lift or

carry up to 10 pounds frequently (Tr. 308-09). He can stand and/or walk for about six hours in

an eight-hour work day with normal breaks (Tr. 309). He can occasionally climb ramps or stairs,

but never climb ladders, ropes or scaffolds (Id.). He can occasionally balance, stoop, kneel, and

crouch, but can never crawl (Id.). He should avoid unprotected heights and exposure to

hazardous machinery (Id.).

The Court finds the ALJ’s RFC determination was based on substantial evidence.

Specifically, as addressed in significant detail above, the ALJ properly evaluated Plaintiff’s

subjective complaints and the medical opinion of Dr. Ragain. In doing so, the ALJ conducted a

complete and detailed analysis of Plaintiff’s medical record and activities of daily living. The

ALJ also addressed the other opinion evidence of record.

First, the ALJ considered the opinion of Dr. Kenneth R. Smith, M.D. (“Dr. Smith”), the

state agency medical consultant, finding it entitled to “some weight” (Tr. 314). In a residual

functional capacity assessment dated January 27, 2015, Dr. Smith found Plaintiff capable of

lifting and/or carrying 20 pounds occasionally and 10 pounds frequently; standing and/or

walking for about six hours in an eight-hour workday; sitting for more than six hours in an eight-

hour workday; occasionally climbing ramps, stairs, ladders, ropes and scaffolds; and

occasionally balancing, stooping, kneeling, crouching and crawling (Tr. 409-11). The ALJ

found the opinion to be consistent with the record as a whole and supportive of the residual

functional capacity (Tr. 315). See 20 C.F.R. §§ 404.1513a(b)(1); 416.913a(b)(1) (State agency

medical consultants are highly qualified experts in Social Security disability evaluation;

therefore, ALJs must consider their findings as opinion evidence); Mabry v. Colvin, 815 F.3d

386, 391 (8th Cir. 2016) (“The state agency physicians’ opinions were consistent with the other

medical evidence and it was proper for the ALJ to rely on them, in part, in formulating [the

plaintiff’s] RFC.”); Kamann v. Colvin, 721 F.3d 945, 951 (8th Cir. 2013) (State agency

psychologist’s opinion supported ALJ’s finding that claimant could work despite his mental

impairments).

Second, the ALJ considered the April 21, 2014 form provided to Plaintiff’s union, finding

it entitled to “no weight” (Tr. 315). The form indicates that Plaintiff was “totally and

permanently disabled and his/her disability is of such a nature that it is expected to be permanent

and continuous for the balance of his/her lift and that (s)he will no longer be able to work as a

Laborer or as employed immediate to disability” (Tr. 572). The signature on the form is illegible

(See 572). The ALJ discounted the form because it “does not provide specific medical evidence

on which the determination was based” (Tr. 315). “An absence of clinical findings supports the

rejection of a physician’s opinion as to physical limitations.” Boyd v. Colvin, 831 F.3d 1015,

1021 (8th Cir. 2016). See also Kaeder v. Berryhill, No. 17-CV-1858 (HB), 2018 WL 4286412,

at *5 (D. Minn. Sept. 7, 2018) (“An ALJ may discount a medical opinion that does not contain or

refer to objective medical evidence, clinical findings, or specific work restrictions.”) (citing 20

C.F.R. § 404.1527(c)(3)). Further, the ALJ correctly found that the determination whether an

individual is disabled under the Social Security Act rests exclusively with the Commissioner (Tr.

315). A physician’s opinion that a claimant is incapable of gainful employment is often not

entitled to significant weight. Fentress v. Berryhill, 854 F.3d 1016, 1020 (8th Cir. 2017)

(quoting Bradley v. Astrue, 528 F.3d 1113, 1116 (8th Cir. 2008)); 20 C.F.R. §§ 404.1527(d),

416.927(d) (“A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does

not mean that we will determine that you are disabled.”). Finally, the ALJ noted that a decision

by any other nongovernmental organization about disability is based on that organization’s rules

and is not binding on the Social Security Administration (Tr. 315). See 20 C.F.R. § 404.1504.

In addition to reviewing and properly considering the other opinion evidence of record,

the ALJ also evaluated the report from Plaintiff’s consultative examination on January 2, 2015

with Dr. Arjun Bhattacharya, M.D. (“Dr. Bhattacharya”) (Tr. 312-13, 627-35). Dr. Bhattacharya

completed a physical examination, finding, as acknowledged by the ALJ, “severe restriction of

range of movement in the neck in all directions” (Tr. 312, 629). However, the remainder of the

report indicates largely normal findings—normal motor function including fine and dexterous

finger control; no motor disabilities identified; normal gait; and no difficulty getting on and off

the exam table (Tr. 312, 627-35). As correctly noted by Defendant and indicated by the ALJ, Dr.

Bhattacharya did not opine any work-related functional limitations (Tr. 313, 627-35). As such,

the ALJ was not required to consider the report as a medical opinion. 20 C.F.R. § 404.1527 (a

medical opinion is a statement that includes “your physical or mental restrictions”). Regardless,

it is clear from the ALJ’s decision that he thoroughly and properly considered Dr. Bhattacharya’s

report (Tr. 312-13).

In conclusion, the Court finds that the ALJ’s RFC determination is consistent with the

relevant evidence of record including the objective medical evidence, the observations of

medical providers, as well as the evaluation of Plaintiff’s subjective complaints.

V. CONCLUSION

For the reasons set forth above, the Court finds that substantial evidence on the record as

a whole supports the Commissioner’s decision that Plaintiff is not disabled.

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and

Plaintiff’s Complaint is DISMISSED, with prejudice.

A separate judgment shall be entered incorporating this Memorandum and Order.

Dated this 24th day of September, 2019.

/s/ Noelle C. Collins

NOELLE C. COLLINS

UNITED STATES MAGISTRATE JUDGE