lack of corroborating medical evidence is one factor to consider when evaluating subjective complaints of pain
How later courts described this case
- lack of corroborating medical evidence is one factor to consider when evaluating subjective complaints of pain
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SAMANTHA C. WILSON, )
)
Plaintiff, )
)
v. ) No. 4:19 CV 1000 RWS
)
ANDREW SAUL, )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM AND ORDER
Plaintiff Samantha Wilson brings this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the Commissioner’s decision denying her application for
disability insurance benefits (DIB) under Title II of the Social Security Act, 42
U.S.C. §§ 401-434, and supplemental security income (SSI) under Title XVI of the
Act, 42 U.S.C. '' 1381 et seq. Sections 205(g) and 1631(c)(3) of the Act, 42
U.S.C. '' 405(g) and 1383(c)(3), provide for judicial review of a final decision of
the Commissioner. Because the Commissioner’s final decision is supported by
substantial evidence on the record as a whole, I will affirm the decision of the
Commissioner.
Procedural History
Plaintiff was born in 1986 and alleged she became disabled beginning July
24, 2015, at the age of 29, because of fibromyalgia, bilateral leg injury, peroneal
nerve damage, anxiety, and depression.
After plaintiff’s application was initially denied, she received a hearing
before an ALJ on July 13, 2018. The ALJ issued a decision denying benefits on
October 30, 2018. On March 20, 2019, the Appeals Council denied plaintiff’s
request for review. The ALJ’s decision is the final decision of the Commissioner.
42 U.S.C. § 405(g).
In this action for judicial review, plaintiff contends that the ALJ erred in her
determination at step 5 of the analysis by relying on the vocational expert’s
testimony. Plaintiff also contends that the ALJ erred in the evaluation of her
credibility. Plaintiff asks that I reverse the Commissioner’s final decision and
remand the matter for further evaluation. For the reasons that follow, I will affirm
the Commissioner’s decision.
Medical Records and Other Evidence Before the ALJ
With respect to the medical records and other evidence of record, I adopt
plaintiff’s recitation of facts set forth in her Statement of Material Facts (ECF #19)
as they are admitted by the Commissioner (ECF #23). These statements provide a
fair and accurate description of the relevant record before the Court. Additional
specific facts will be discussed as needed to address the parties’ arguments.
Discussion
A. Legal Standard
To be eligible for disability insurance benefits under the Social Security Act,
plaintiff must prove that she is disabled. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552,
555 (8th Cir. 1992). The Social Security Act defines disability 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). An individual will be declared disabled “only
if [her] physical or mental impairment or impairments are of such severity that
[she] is not only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits her ability to do basic work activities. If the claimant’s
impairment(s) is not severe, then she is not disabled. The Commissioner then
determines whether claimant’s impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant’s
impairment(s) is equivalent to one of the listed impairments, she is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform her past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
I must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402
U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001). Determining whether there is substantial
evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th
Cir. 2007).
I must consider evidence that supports the Commissioner’s decision as well
as any evidence that fairly detracts from the decision. McNamara v. Astrue, 590
F.3d 607, 610 (8th Cir. 2010). If, after reviewing the entire record, it is possible to
draw two inconsistent positions and the Commissioner has adopted one of those
positions, I must affirm the Commissioner’s decision. Anderson v. Astrue, 696
F.3d 790, 793 (8th Cir. 2012). I may not reverse the Commissioner’s decision
merely because substantial evidence could also support a contrary outcome.
McNamara, 590 F.3d at 610.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the claimant, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of
medication; and (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ=s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007). However, the
ALJ retains the responsibility of developing a full and fair record in the non-
adversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
B. ALJ’s Decision
In her written decision, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the alleged onset date of July 24, 2015. The ALJ
found plaintiff’s fibromyalgia and/or myositis, chronic pain syndrome, complex
regional pain syndrome, peripheral neuropathy, neuralgia, migraines, obesity,
major depressive disorder, generalized anxiety disorder, posttraumatic stress
disorder, and alcohol use disorder to be severe impairments, but determined that
they did not meet or medically equal a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 17.) The ALJ found plaintiff to have the RFC to
sedentary work with the following limitations:
occasionally balance and stoop, but no kneeling, crouching, or
crawling; occasionally climb entry ramps and stairs, but no climbing
ladders, ropes, or scaffolds; no overhead reaching bilaterally;
occasional pushing and pulling with the upper and lower extremities
within the sedentary weight limits; and understand, remember, and
carry out simple and routine instructions and tasks, as long as there
are no fast-paced production requirements, so no production rate pace
work such as assembly line work.
(Tr. 19.) The ALJ relied upon vocational expert testimony to support a conclusion
that plaintiff could perform work as cashier, telephone solicitor, and food and
beverage order clerk. (Tr. 26.) The ALJ then made the following finding:
Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is generally consistent with the information contained in the DOT.
With respect to his testimony regarding overhead reaching, fast-paced
production requirements, absenteeism, and rest periods, the vocational
expert relied on his knowledge, training, and experience.
The vocational expert testified that although the DOT classifies cashier jobs
as light work, in actuality, 10% of cashier jobs in the national economy are
performed at the sedentary level. The vocational expert testified that
similarly, the DOT classifies the telephone solicitor job as semiskilled work
with a SVP of 3, but 50% of those jobs can be learned within 30 days at the
SVP 2 level. I accept the vocational expert’s explanation and deviation from
the DOT because it is based on his knowledge, training, and experience.
(Tr. 26.) Based on the vocational expert’s testimony, the ALJ concluded that
plaintiff was not disabled. (Tr. 26-27.)
Plaintiff claims that this decision is not supported by substantial evidence
because the ALJ improperly relied upon the vocational expert’s testimony at step 5
of the analysis and improperly assessed her credibility.
C. Vocational Expert’s Testimony
Plaintiff first argues that the ALJ erred by relying on the VE’s testimony that
she could perform the jobs of cashier, telephone solicitor, and beverage order clerk
at step 5 of the analysis. In particular, plaintiff challenges the VE’s testimony that
she could perform the job of cashier, which is described in the Dictionary of
Occupational Titles (DOT) as performed at the light exertional level, while the
ALJ’s hypothetical to the VE and RFC assessment found plaintiff capable of only
sedentary level work, with additional limitations. Plaintiff also challenges the
VE’s assessment that telephone solicitor work can be learned within 30 days and
the basis for the reduction in jobs to account for plaintiff’s limitations.1 During the
hearing, the VE was given the following hypothetical by the ALJ and provided the
following testimony:
Q: Okay. All right. We have a younger individual. She’s now 32, high
school education. Past work is the hotel clerk job as you described. This
first hypothetical is going to be a range of sedentary. Sedentary except
occasional balance and stoop but no kneeling, crouching or crawling. Can
occasionally climb entry ramps and stairs but no climbing ladders, ropes or
scaffolds. No overhead reaching bilaterally. Occasional push or pull with
the upper and lower extremities within the sedentary weight limits. And
understand, remember and carry out simple and routine instructions and
tasks as long as there are no fast paced production requirements so no
production rate pace work, like, assembly work . . .
Okay. With that hypothetical assuming a person of the claimant’s age,
education and work history would they be able to perform any of the past
work.
A; No, ma’am.
Q: Any other work in the national economy that such an individual could
perform?
A: Yes, there would be.
1 Work that is semi-skilled corresponds to a specific vocational preparation (SVP) time of 3-4.
Work that is at the unskilled level requires less than 30 days to learn. Thus, the VE testified here
that 50 % of the telephone solicitor jobs were unskilled, despite them DOT’s classification as
SVP 3-4 or semi-skilled.
Q: Can you give me three examples please?
A: Examples would be jobs such as sedentary cashiers. About 300,000
nationwide . . . That number is 211.462-010. Another example would be
unskilled telephone solicitors. About 200,000 nationwide. That DOT
number is 299.357-014 . . . A third example would be food and beverage
clerks. About . . . 70,000 nationwide . . . That DOT number is 209.567-014.
Q: Okay. And those are all unskilled SVP 2 jobs?
A: They are although I’ve – I’ve varied from the DOT in those cases.
Q: Okay. And which ones did you vary from the DOT?
A: Unskilled cashiers in the DOT are categorized at the light level and in the
actual labor market there are sedentary, light and medium exertional level,
unskilled cashiers. The number that I cited is less – it’s about 10 percent of
the total number of unskilled cashiers. Telephone solicitors in the DOT are
categorized as semi-skilled with a SVP of 3. In the actual labor market at
least half of the telephone solicitors are unskilled. That is they require less
than 30 days training before they can be fully functional and the number I
cited is about one half of the telephone solicitors.
Q: Okay. And the food and beverage order clerk you didn’t deviate?
A: No. ma’am.
(Tr. 61-63.) Upon questioning by plaintiff’s counsel the VE offered the following
testimony:
Q: Have you done any surveys of these jobs?
A: I’ve seen these jobs performed.
Q: Have you actually done any jobs of the cashier, telephone solicitor or
food and beverage order clerk?
A: I haven’t done any formal surveys but I’ve seen these jobs performed
many, many times.
Q: And you say you’ve seen the job performed. Can you explain that?
A: I mean I’ve been in stores where cashiers were working. I’ve seen what
they do probably thousands of times. I’ve been in restaurants and hotels
where fast food – where order clerks – food and beverage clerks were
working. I’ve seen what they do and –
Q: When you say you’ve seen what they do, you were not surveying the job
itself you were just observing what occurred on the time when you were
there?
A: That’s correct.
(Tr. 68-69.) In her written decision, the ALJ relied upon the VE’s testimony to
support a conclusion that plaintiff could perform work as cashier, telephone
solicitor, and food and beverage order clerk. (Tr. 26.) The ALJ then made the
following finding:
Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is generally consistent with the information contained in the DOT.
With respect to his testimony regarding overhead reaching, fast-paced
production requirements, absenteeism, and rest periods, the vocational
expert relied on his knowledge, training, and experience.
The vocational expert testified that although the DOT classifies cashier jobs
as light work, in actuality, 10% of cashier jobs in the national economy are
performed at the sedentary level. The vocational expert testified that
similarly, the DOT classifies the telephone solicitor job as semiskilled work
with a SVP of 3, but 50% of those jobs can be learned within 30 days at the
SVP 2 level. I accept the vocational expert’s explanation and deviation from
the DOT because it is based on his knowledge, training, and experience.
(Tr. 26.) Based on the VE’s testimony, the ALJ concluded that plaintiff was not
disabled. (Tr. 26-27.)
Plaintiff argues that the ALJ erred in relying upon the VE’s testimony
because it was not based upon any research or surveys but was instead based upon
his personal observations. The ALJ’s hypothetical to the VE and her RFC
assessment concluded that plaintiff could only perform work at a sedentary level,
with modifications. Here, however, the ALJ did not substantially err when she
accepted the VE’s testimony that plaintiff could perform the work of cashier at a
sedentary level with her credible limitations and that the job of telephone solicitor
could be learned within 30 days, thus placing it in an SVP 2 level consistent with
plaintiff’s RFC that she can “understand, remember and carry out simple and
routine instructions.” Nor did the ALJ substantially err in accepting the VE’s
reduction in the number of available jobs in the national economy to account for
plaintiff’s limitations and resulting deviation from the job requirements as listed in
the DOT.
When a vocational expert (VE) provides evidence about the requirements of
a job or occupation, the adjudicator has an affirmative responsibility to ask about
any possible conflict between that VE’s evidence and the information provided in
the Dictionary of Occupational Titles. Jones v. Astrue, 619 F.3d 963, 977-78 (8th
Cir. 2010). A vocational expert’s testimony should generally be consistent with
the DOT. See Policy Interpretation Ruling: Titles II & XVI: Use of Vocational
Expert & Vocational Specialist Evidence, & Other Reliable Occupational
Information in Disability Decisions, SSR 00–4P, 2000 WL 1898704 (S.S.A. Dec.
4, 2000). When it is not, and “when there is an apparent unresolved conflict
between the VE . . . and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE.” Welsh v. Colvin, 765 F.3d
926, 929 (8th Cir. 2014) (quoting SSR 00-4p). The Eighth Circuit Court of Appeals
has construed SSR 00-4p “as placing on the ALJ an affirmative responsibility to
ask about ‘any possible conflict’ between VE evidence and the DOT, and to obtain
an explanation for any such conflict, before relying on VE evidence to support a
determination the claimant is not disabled.” Id. (citing Kemp v. Colvin, 743 F.3d
630, 633 (8th Cir. 2014)). “When an ALJ has posed a hypothetical that accurately
reflects his RFC finding, questioned the VE about any apparent inconsistencies
with the relevant DOT job descriptions, and explained his decision to credit the
VE’s testimony, the ALJ has complied with SSR 00–4p, and we review his
decision under the deferential substantial evidence standard.” Id. at 930 (citing
Jones, 619 F.3d at 978). “When VE testimony conflicts with the DOT, the DOT
controls when the DOT classifications are not rebutted.” Jones, 619 F.3d at 978.
(internal quotation marks and citation omitted). However, the DOT definitions
“are simply generic job descriptions that offer the appropriate maximum
requirements for each position, rather than their range.” Hillier v. Social Sec.
Admin., 486 F.3d 359, 366 (8th Cir. 2007) (internal quotation marks and citations
omitted). “Not all of the jobs in every category have requirements identical to or
as rigorous as those listed in the Dictionary of Occupational Titles.” Id. (internal
quotation marks, citation, and alteration omitted).
Here, the ALJ acknowledged at the hearing and in her written decision the
possible conflict between the VE’s testimony and the DOT job descriptions for
cashier and telephone solicitor. The VE relied upon his 40 years of experience to
conclude that 10% of the jobs of cashier in the national economy are actually
performed at the sedentary, rather than light, exertional level, and he testified that
someone with plaintiff’s RFC could perform the job of cashier at the sedentary
level. Adjusting the number of jobs of cashier reported by the U.S. Department of
Labor, Occupational Employment survey downwards 90 % to reflect only
sedentary cashier positions still left 300,000 jobs in the national economy that
someone with plaintiff’s credible limitations could perform. The VE similarly
relied upon his experience to conclude that half of the telephone solicitor jobs in
the national economy can actually be learned within 30 days, thus placing them
within the SVP 2 skill level consistent with plaintiff’s limitations. Adjusting the
Department of Labor’s numbers downwards 50% to reflect telephone solicitor jobs
at the SVP 2 level resulted in 200,000 jobs in the national economy that someone
with plaintiff’s credible limitations could perform. After considering the VE’s
explanation for his deviation from the DOT, the ALJ accepted the VE’s
explanation for his deviation from the DOT and credited the testimony because it
was based on his knowledge, training, and experience.
Plaintiff challenges the basis for the VE’s testimony because it was based on
his personal experience2 rather than formal job surveys. The Eighth Circuit
rejected a similar argument in Welsh, where the plaintiff argued that the ALJ
improperly relied upon VE testimony because it was allegedly “based upon
insufficient personal experience and unreliable scholarly literature.” 765 F.3d at
929. The Eighth Circuit held that “these were fact issues for the ALJ to resolve”
and affirmed the ALJ’s decision because “SSR 00-4p specifically provides that, in
crediting VE testimony over a DOT listing, an ALJ may rely on information about
a particular job’s requirements available in other reliable publications, information
obtained directly from employers, or from a VE’s experience in job placement or
career counseling.” Id. (internal quotation marks, citation, and alterations omitted).
Similarly, in Jones, the VE reduced his estimate of the number of existing jobs
because the claimant’s RFC, unlike the DOT’s description for those jobs, was
limited to “occasional handling,” an approach the Eighth Circuit concluded “was a
perfectly acceptable basis for the [ALJ’s] conclusions.” 619 F.3d at 977-78. The
2 Although the plaintiff argues that the VE’s experience was simply as a “consumer,” the VE
actually testified that his opinions were based on his “own experience of more than 40 years of
placing disabled people in the work place.” (Tr. 64.) Plaintiff did not object to the VE’s
qualifications at the hearing.
VE followed the same approach in this case to conclude, based upon his extensive
experience, that there were a reduced (but still significant) number of cashier and
telephone solicitor jobs that someone with plaintiff’s limitations could perform.
Where, as here, the ALJ and counsel thoroughly questioned the VE about his
deviation from the job descriptions in the DOT, the VE based his deviation from
the DOT upon his 40 years of experience in the industry, and the ALJ explained
the inconsistency between the VE’s testimony and the DOT and then further
explained the reasons why she credited the VE’s testimony, the Court defers to the
decision of the ALJ and concludes that substantial evidence on the record as a
whole supports the ALJ’s decision to rely upon the VE’s testimony to find plaintiff
not disabled. See Welsh, 765 F.3d at 929; Jones, 619 F.3d at 978.
Finally, plaintiff argues without support that none of the jobs meet her RFC
assessment, but she fails to provide any explanation as to how the DOT description
of food and beverage clerk is inconsistent with her RFC. The VE testified that he
did not deviate from the DOT with respect to his finding that someone with
plaintiff’s credible limitations could perform the job of food and beverage clerk,
and that 70,000 of those jobs exist in the national economy. As such, substantial
evidence in the record as a whole supports the ALJ’s finding that a significant
number of jobs would be available in the national economy that plaintiff is capable
of performing, and the decision to deny benefits is affirmed. See Clay v. Barnhart,
417 F.3d 922, 931 (8th Cir. 2005).
D. Credibility Assessment
Plaintiff next argues that the ALJ erred in assessing her credibility and
discounting her complaints of pain as inconsistent with the medical evidence.
Plaintiff also contends that the ALJ improperly considered her alcohol use.
Plaintiff essentially argues that I should reweigh the evidence considered by the
ALJ in her determination of plaintiff’s RFC, including her subjective complaints of
pain. That is not my role. Hensley v. Colvin, 829 F.3d 926, 934 (8th Cir. 2016).
“The credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Pearsall, 274 F.3d at 1218. I must defer to the ALJ’s
credibility determinations “so long as such determinations are supported by good
reasons and substantial evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir.
2005). When determining the credibility of a claimant’s subjective complaints, the
ALJ must consider all evidence relating to the complaints, including the claimant’s
prior work record and third party observations as to the claimant’s daily activities;
the duration, frequency and intensity of the symptoms; any precipitating and
aggravating factors; the dosage, effectiveness and side effects of medication; and
any functional restrictions. Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir.
2010); Polaski, 739 F.2d at 1322. While an ALJ need not explicitly discuss each
Polaski factor in his decision, she nevertheless must acknowledge and consider
these factors before discounting a claimant’s subjective complaints. Wildman v.
Astrue, 596 F.3d 959, 968 (8th Cir. 2010). “[T]he duty of the court is to ascertain
whether the ALJ considered all of the evidence relevant to the plaintiff’s
complaints . . . under the Polaski standards and whether the evidence so contradicts
the plaintiff’s subjective complaints that the ALJ could discount his or her
testimony as not credible.” Masterson v. Barnhart, 363 F.3d 731, 738B39 (8th Cir.
2004). It is not enough that the record merely contain inconsistencies. Instead, the
ALJ must specifically demonstrate in her decision that she considered all of the
evidence. Id. at 738; see also Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991).
Where an ALJ explicitly considers the Polaski factors but then discredits a
claimant’s complaints for good reason, the decision should be upheld. Hogan v.
Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
Here, in formulating plaintiff’s RFC, the ALJ properly evaluated plaintiff’s
subjective allegations of pain based upon her own testimony, the objective medical
evidence of record, her daily activities, and treatment history. In an extensive
analysis, the ALJ summarized plaintiff’s testimony regarding her daily activities
and subjective allegations of pain, along with the medical evidence of record, in
determining plaintiff’s RFC. Contrary to plaintiff’s assertions, the ALJ did not
discredit plaintiff’s allegations of pain. Instead, she “credited the claimant’s
allegations of chronic widespread pain” (Tr. 21.) and concluded that plaintiff’s
objective medical testing, which yielded only mild findings, and her examinations
supported an RFC limited to only sedentary work with further limitations on
balancing, stooping, climbing, kneeling, crouching, overheard reaching, and
pushing and pulling. The ALJ was not required to fully credit all of plaintiff’s
assertions regarding her limitations and her inability to work given her activities,
which included performing light routine household chores such wiping the
counters, washing clothes, doing the dishes, shopping, vacuuming, caring for
household pets, using public transportation3, handling finances, and spending time
with friends. Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996). “Acts such
as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and
walking, are inconsistent with subjective complaints of disabling pain.” Medhaug,
578 F.3d at 817.
The ALJ also discounted plaintiff’s credibility after noting that she
continued to perform part-time, sedentary work after her alleged onset date. “Acts
which are inconsistent with a claimant’s assertion of disability reflect negatively
3 Plaintiff complains that the ALJ should have considered this as evidence of her disabling
impairments because she alleged that she could not drive due to difficulty concentrating.
However, plaintiff ignores the fact that driving was not an option since she did not have a valid
driver’s license. The resolution of this fact issue was for the ALJ, not this Court, to resolve.
upon that claimant’s credibility.” Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir.
2001).
The ALJ also discounted plaintiff’s allegations of disabling pain after
reviewing plaintiff’s failure to seek treatment from a pain management specialist in
2016 on the advice of her worker’s compensation attorney. (Tr. 44, 502.) Prior to
plaintiff’s alleged onset date, plaintiff injured her shoulder at work and underwent
physical therapy, reporting improvement. (Tr. 314-27, 323-25.) After a second
work-related accident involving her shins and ankles (resulting in her alleged onset
date), plaintiff again underwent physical therapy. (Tr. 331-46.) Plaintiff began
treatment with a pain specialist, Thomas Johans, M.D., in November of 2015. (Tr.
388, 452.) Dr. Johans administered injections that lessened some of plaintiff’s
pain. (Tr. 401, 403.) However, she stopped treatment with Dr. Johans in
December of 2015 and sought no treatment from a pain management specialist in
2016 on the advice of her worker’s compensation attorney. (Tr. 44.) She returned
to Dr. Johans again in January of 2017, telling him that she had received no
therapeutic treatment in the interim. (Tr. 502.) Plaintiff sought no more treatment
from Dr. Johans. In December of 2017, plaintiff presented to the emergency room
for bilateral knee pain radiating down both legs into her feet. (Tr. 537.) She
reported taking no pain medications but admitted that she self-medicated with
alcohol. (Tr. 514.) Plaintiff’s lack of treatment by a pain specialist and lack of
pain medication are inconsistent with her claims of disabling pain. See Milam v.
Colvin, 794 F.3d 978, 985 (8th Cir. 2015). The ALJ also noted that plaintiff
claimed to have suffered significant migraine headaches since she was a teenager
but that her medical records had little mention of migraines until January of 2018.
The ALJ may properly consider the fact that plaintiff did not seek or require
aggressive treatment for her impairments. See Clevenger v. Social Security
Administration, 567 F.3d 971, 976 (8th Cir. 2009).
In evaluating plaintiff’s credibility, the ALJ also properly considered the fact
that plaintiff had a trial spinal cord stimulator implanted in March of 2018, which
greatly improved her pain (70% pain reduction in her leg and 40% in her back) and
rendered her “functional to a much greater degree than in the past.” (Tr. 557.)
Plaintiff also reported improvement with migraines after Botox injections. (Tr.
599.) Impairments which can be controlled by medication or treatment are not
considered disabling. See Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009).
The ALJ also properly considered plaintiff’s noncompliance with medical
instructions to seek professional help to stop her daily use of alcohol.4 (Tr. 403,
493, 497.) “[A]n ALJ may properly consider the claimant’s . . . failing to take
4 Dr. Johans and Robert Poetz, D.O. urged plaintiff to seek treatment for alcohol use disorder,
and Laura Tishey, Psy.D., diagnosed plaintiff with alcohol use disorder, moderate, and suggested
that she continue with psychological services and consult a psychiatrist about her psychotropic
medications.
prescription medications, seek treatment, and quit smoking.” Choate v. Barnhart,
457 F.3d 865, 872 (8th Cir. 2006). Although plaintiff argues that the ALJ
improperly discredited her physical impairments due to her alcohol use, the ALJ
properly considered it in the context of assessing plaintiff’s credibility in
connection with the exacerbation of mental symptoms and the effectiveness of
medication. (Tr. 22.)5
Plaintiff also claims that the ALJ improperly decided that she did not return
to work secondary to marriage based on the following passage in the ALJ’s
decision:
By way of background, the claimant was injured on the job in July 2015.
She pursued a workers’ compensation claim and was involved in a lawsuit.
Her symptoms subsequently improved and she was released back to work,
but did not return. She apparently quit working within a month of getting
married, reporting that she was a “stay at home” wife.
(Tr. 20.) The ALJ did not determine that plaintiff stopped working because she
married, but simply noted the timing of events “by way of background.”
Moreover, the ALJ ultimately determined that plaintiff’s impairments prevented
her from returning to work at her previous job, regardless of marriage. Because
5 Plaintiff also argues that the ALJ erred by failed to evaluate the materiality of her alcohol use,
but the Regulations only require a materiality finding when the ALJ finds a claimant to be
disabled. 20 C.F.R. § 404.1535 (2018) (“If we find that you are disabled . . . we must determine
whether your drug addiction or alcoholism is a contributing factor material to the determination
of disability.”). As the ALJ concluded that plaintiff was not disabled, such a finding was not
required.
the ALJ did not rely upon plaintiff’s marriage to conclude that she was not
disabled, any mention of this background evidence amounts to, at most, “an
arguable deficiency in opinion-writing technique [which] does not require [the
Court] to set aside an administrative finding when that deficiency had no bearing
on the outcome.” Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (internal
quotation marks and citation omitted).
The ALJ also properly weighed the medical evidence in evaluating
plaintiff’s subjective allegations of pain. With respect to plaintiff’s physical
impairments, the ALJ gave great weight to the opinion of Paul Ganninger, M.D.,
who indicated that plaintiff needed to look for more sedentary work in April 2016.
(Tr. 451.) The ALJ credited that opinion and limited plaintiff to sedentary work.
(Tr. 19.) Although plaintiff argues that the ALJ failed to consider Dr. Ganninger’s
finding of trace edema back in September 2015, two months after her injury, the
ALJ expressly acknowledged the trace edema and concluded that this episodic
abnormal clinical presentation supported a limitation to sedentary work. (Tr. 21.)
Plaintiff was also examined by Robert Poetz, D.O., in October 2016 for her
worker’s compensation claim. (Tr. 497.) .) During the examination, plaintiff
exhibited good ranges of motion, negative straight leg raising, no sensory deficits,
and normal reflexes. (Tr. 497.) Dr. Poetz opined that plaintiff should avoid
pushing and pulling, heaving lifting, strenuous activity, overhead use of her arms,
and prolonged sitting, standing, walking, stooping, bending, squatting, twisting or
climbing. (Tr. 497.) The ALJ gave some weight to Dr. Poetz’s opinion,
concluding that plaintiff’s episodically occurring abnormal clinical presentations,
including antalgic gait and joint tenderness, supported his recommended
limitations of no heavy lifting or prolonged standing and walking and pushing and
pulling limitations. (Tr. 23.) Accordingly, the ALJ limited plaintiff to sedentary
work with occasional pushing and pulling limitations. (Tr. 23.) The ALJ
disregarded Dr. Poetz’s opinion with respect to a limitation on prolonged sitting as
vague and inconsistent with the record as a whole, including plaintiff’s activities of
daily living and efficacy of treatment. (Tr. 24.) In June 2018, Mark Tobin, LPC,
CC-MHC, opined that plaintiff could only sit or stand for one hour at a time before
needing a break. (Tr. 574.) He also stated that plaintiff needed a mid-day break
and could not lift, pull, hold objects, travel alone, or work. (Tr. 573-77.) The ALJ
afforded little weight to Mr. Tobin’s opinions as to plaintiff’s physical impairments
as he was plaintiff’s mental health counsellor and his RFC assessment stated that
he “deferred to treating physician for physical input” and “referred to pain
management doctor” regarding plaintiff’s specific physical limitations. (Tr. 575,
577.) It is the duty of the ALJ to weigh conflicting evidence and to resolve
disagreements among medical opinions. Cline v. Colvin, 771 F.3d 1098, 1103 (8th
Cir. 2014). Here, the ALJ did not substantially err when she assigned lesser weight
to some of Dr. Poetz’s opinions and Mr. Tobin’s opinions regarding plaintiff’s
physical limitations.
The ALJ also thoroughly weighed and considered the medical evidence of
plaintiff’s mental impairments when assessing her subjective allegations of pain.
In October 2016, Laura Tishey, Psy.D., performed a consultative mental evaluation
of plaintiff and opined that she had mild to moderate limitations in understanding
and remembering instructions depending on the complexity, and sustaining
persistence and concentration. (Tr. 493.) Dr. Tishey also concluded that plaintiff
suffered a severe impairment in her ability to interact socially and adapt to her
environment. (Tr. 494.) During the evaluation, plaintiff appeared alert, oriented,
polite, and cooperative with good grooming, good eye contact, depressed mood,
and congruent affect. (Tr. 491-92.) The ALJ gave some weight to Dr. Tishey’s
opinion and limited plaintiff to simple tasks and no fast-paced work, but she
rejected Dr. Tishey’s opinion with respect to plaintiff’s social limitations as
inconsistent with plaintiff’s testimony that she goes out with friends and plays
board games and has no difficulties getting along with others on the job. (Tr. 24.)
A state agency medical consultant opined that plaintiff could perform moderately
complex instructions and adapt to changes in a moderately demanding work setting
that did not require sustained periods of social interaction with others. (Tr. 81-83,
86-87.) The ALJ afforded some weight to this opinion, concluding that it
supported a limitation to simple tasks and instructions. (Tr. 23.) It is the function
of the ALJ to resolve conflicts between medical opinions, and the ALJ did not
substantially err in evaluating the medical opinions regarding plaintiff’s mental
limitations. See Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008).
The objective medical evidence on the record as a whole also supports the
ALJ’s assessment that plaintiff was not as limited as she claimed. An MRI of
plaintiff’s brain performed on February 21, 2018 yielded normal results. (Tr. 596.)
Ankle x-rays were negative, but MRIs showed mild soft tissue swelling and edema
(Tr. 596, 328, 451, 496-97, 596.) Contrary to plaintiff’s argument, the ALJ
acknowledged and accounted for these mild abnormal findings when fashioning
plaintiff’s RFC by limiting her to sedentary work. (Tr. 21.) The ALJ also
considered plaintiff’s testimony that she needed a cane or walker to ambulate.
Although plaintiff did not use a cane or walker at the hearing, she testified that she
had just been prescribed one so the ALJ left the record open for plaintiff to
supplement it with her prescription. (Tr. 22.) Plaintiff never supplemented the
record with a prescription for a cane or walker. (Tr. 22.) The ALJ determined that
a cane or walker was medically unnecessary given the medical evidence
demonstrating that plaintiff had normal gait (Tr. 607.) and the successful spinal
cord simulator trial. (Tr. 22.) Nevertheless, the ALJ went on to conclude that any
use of a cane or walker was for brief acute symptom exacerbation only and that the
limitation to sedentary work accounted for any limitations arising from plaintiff’s
gait disturbance. (Tr. 22.) Plaintiff’s relatively normal physical examinations and
objective test results, despite her complaints of disabling limitations, were properly
considered by the ALJ as one factor when formulating her RFC. See Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (lack of corroborating medical
evidence is one factor to consider when evaluating subjective complaints of pain).
Even if the ALJ could have drawn a different conclusion about plaintiff’s
credibility after reviewing the record as a whole, I may not reverse the
Commissioner’s decision merely because substantial evidence could also support a
contrary determination. McNamara, 590 F.3d at 610. Here, the ALJ discounted
plaintiff’s subjective complaints only after evaluating the entirety of the record.
Where, as here, an ALJ seriously considers but for good reasons explicitly
discredits a claimant’s subjective complaints, the Court will not disturb the ALJ’s
credibility determination. Johnson, 240 F.3d at 1147. The ALJ evaluated all of
the medical evidence of record and adequately explained her reasons for the weight
given this evidence. Substantial evidence in the record as a whole supports the
ALJ’s credibility determination, so I will affirm the decision of the Commissioner
as within a “reasonable zone of choice.” Fentress v. Berryhill, 854 F.3d 1016,
1021 (8th Cir. 2017) (citing Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008)).
Conclusion
When reviewing an adverse decision by the Commissioner, the Court’s task
is to determine whether the decision is supported by substantial evidence on the
record as a whole. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). “Substantial
evidence is defined to include such relevant evidence as a reasonable mind would
find adequate to support the Commissioner’s conclusion.” Id. Where substantial
evidence supports the Commissioner’s decision, this Court may not reverse the
decision merely because substantial evidence exists in the record that would have
supported a contrary outcome or because another court could have decided the case
differently. Id.; see also Igo v. Colvin, 839 F.3d 724, 728 (8th Cir. 2016); Buckner
v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
For the reasons set out above, a reasonable mind can find the evidence of
record sufficient to support the ALJ’s determination that plaintiff was not disabled.
Because substantial evidence on the record as a whole supports the ALJ’s decision,
it must be affirmed. Davis, 239 F.3d at 966.
Accordingly,
IT IS HEREBY ORDERED that that the decision of the Commissioner is
affirmed, and Samantha Wilson’s complaint is dismissed with prejudice.
A separate Judgment is entered herewith.
Ww
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 20th day of February, 2020.
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