Valandra v. Astrue, No. 3:2009cv03014 - Document 26 (D.S.D. 2010)
Court Description: OPINION AND ORDER AFFIRMING FINAL DECISION. Signed by U.S. District Judge Roberto A. Lange on 10/27/2010. (LH)
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Valandra v. Astrue Doc. 26 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION DOYLE M. VALANDRA, Plaintiff, -vsMICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. * * * * * * * * * * CIV 09-30 I4-RAL OPINION AND ORDER AFFIRMING FINAL DECISION Plaintiff seeks reversal of Defendant's decision denying Plaintiffs application for social security disability insurance and attendant Medicare benefits. Alternatively, Plaintiff requests the Court to remand Defendant's decision for a hearing on all of the issues now raised by Plaintiff. For reasons explained, this Court affirms the final decision of the Commissioner of Social Security. I. Facts A. l>rocedural Background On October 21, 2005, Plaintiff filed an application for disability insurance benefits alleging that he had been unable to work since June 2, 2003, as the result of a lower back injury Plaintiff sustained while employed as a heavy equipment operator. (AR. 60-62, 512). The Social Security Administration denied Plaintiffs application initially (A.R. 48-50) and on reconsideration (AR. 45-46). Plaintiff requested and was granted a hearing before an Administrative Law Judge ("AU"). (AR. 44, 41-42). After conducting a hearing on May 27, 2008, the AU concluded that "Plaintiff was 'disabled' within the meaning of the Social Security Act ii'om June 2, 2003 through October 3, Dockets.Justia.com 2005." (A.R. IS). The ALJ found that this period of "disability" ended on October 4, 2005, however, due to "medical improvements," that enabled Plaintiff to perform "substantial gainful activity." (AR. 15-27). Following the ALJ's decision, the Appeals Council denied Plaintiff's request for review. (A.R. 6-8). B. Factual Background Plaintiff was born on December 8, 1966. He dropped out of school in the tenth grade, but later obtained his OED. (AR.798). At the time of Plaintiff's May 27, 2008 hearing, he had been in a relationship with Becky Ritter, a school teacher, for twenty years. (A.R. 550,823). Prior to becoming disabled, Plaintiff worked as a heavy equipment operator, auto mechanic, treatment plant mechanic, security guard, ranch hand, and cashier at a pawn shop. (AR. 149-50, 154). Plaintiff has never completed any vocational school or received any special job training. (AR. 99, 798). On July IS, 2002, Dr. Rand Schleusener performed an L4-5 microdiscectomy on Plaintiff in an attempt to treat Plaintiff's back and radiating leg pain. (AR. 392, 513). Plaintiff did "quite well" following the surgery, but re-iqjured himself on June 2, 2003, while changing the hydraulics on a front-end loader. (AR.512). An MRI showed that Plaintiff had a recurrent disc herniation at L4-5. Dr. Schleusener performed another microdiscectomy on Plaintiff on July 21, 2003. (AR.345-46). The July 21, 2003 surgery did little to relieve Plaintiff's significant back pain, however, and after trying more conservative treatment options Plaintiff underwent an L4-5 discectomy and fusion surgery on August 9, 2004. (A.R. 470-506, 231-32). Despite the L4-5 discectomy and fusion surgery, Plaintiff's pain remained similar to what it was prior to the operation. (AR. 443, 450, 460, 465). Dr. Schleusener saw Plaintiff regularly 2 after this third surgery. Although he found in July 01'2005 that Plaintiff's lumbar fusion had healed, Dr. Schleusener acknowledged that because of PlaintifT' s continuing pain, "we may havc to look at chronic pain management." (A.R. 442-443). On October 4,2005, Dr. Schlcusener concluded that Plaintiff had reached "maximum medical improvement" and that he had a "10% impairment ofthc whole person." (AR.437). In reaching his conclusion, Dr. Schleusener noted that he was "not sure [Plaintiff] was a whole lot better," and released Plaintiff to work with restrictions of "sedentary work with largely some light duty work, [with the ability] to change positions frequently, and no prolonged lifting of more than ten pounds." (AR.437). Various doctors conducted assessments of Plaintiff in relation to his October 21, 2005 application for benefits. In March of 2006, Dr. Kevin Whittle, a non-examining physician, conducted a Physical Residual Functional Capacity Assessment of Plaintiff through review of Plaintiffs medical record. Dr. Whittle found that Plaintiff could occasionally lift 20 pounds and frequently lift 10 pounds. (AR. 156). Dr. Whittle also concluded that Plaintiff could stand and/or walk for at least two hours and sit for about six hours within one eight-hour workday. (Id.). Additionally, Dr. Whittle found that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR. 157). In June 01'2006, Dr. Frederick Entwistle also reviewed Plaintiffs record and completed a Physical Residual Functional Capacity Assessment of Plaintiff. Dr. Entwistle's findings were similar to those of Dr. Whittle, except that Dr. Entwistle precluded Plaintiff fi'om climbing ladders, ropes, and scaffolds, and Irom "even mild exposure" to work hazards such as machinery and heights. (A.R. 179, 181). 3 Dr. Cheryl Buchkoski, a state agency psychologist, reviewed Plaintiffs record in March of 2006. Although Dr. Buchkoski did not find that Plaintiff was severely impaired, she did find that Plaintiff was mildly limited in carrying out his daily activities, and in maintaining concentration. (A.R. 163, 175). Dr. Buchkoski also found that Plaintiff had experienced one or two episodes of decompensation. (A.R. 173). During the May 27, 2008 hearing to consider Plaintiffs application for disability insurance benefits, the ALJ heard testimony from Plaintiff, Becky Ritter, and Jerry Gravatt, a vocational specialist. (AR. 794). Plaintiff testified that he could only stand for 15-20 minutes at a time and that when he walks, his legs "get real weak and sometimes give out on [him]." (AR. 800-01). Plaintiff said that he could sit for about 30 minutes at a time, and four times a day he had to lie down for between 45 minutes and an hour to alleviate back pain. (ld.). Plaintiff believed that his back had gotten worse since the 2004 surgery, that recent increases in his pain medication only "took the edge off," and that he still had trouble concentrating. (AR. 801, 807). Plaintiff also testified that the farthest he could walk without resting was 100 feet, that he could not lift over ten pounds, that he did not participate in any hobbies or sports, and that his typical day consisted of driving into town to get the mail and then watching television while intermittently standing, sitting, or laying down to alleviate his pain. (AR. 802, 806, 813). Plaintiffs girlfriend, Becky Ritter, testified that Plaintiffs condition had worsened over the past three years, and that Plaintiff "just keeps losing strength and losing mobility." (A.R. 825,829). Ritter stated that while she did most of the household chores, PlaintifTfed and watered the couple's dogs, an activity that usually took him about 30 minutes to complete. (AR. 827). Ritter told the ALJ that although Plaintiff used to be able to walk one quarter mile, he 4 could no longer walk even one hundred yards, and that his legs gct weak if he attempts to do so. (A.R.830). Vocational expert Jerry Gravatt, who reviewed Plaintiffs file prior to the hearing, also testified. (AR. 832). The ALJ asked Mr. Gravatt what the national and regional economy offered in terms ofjobs for a person of Plaintiffs age, education level, work history, and residual functional work capacity as ofOctobcr 4,2005.] (A.R.833-34). In response, Mr. Gravatt said that Plaintiff could work as a machine tender, press operator, or small jewelry assembler. (AR. 834). Mr. Gravatt also testified that a person performing one of these three jobs would sit approximately six to seven hours a day, and that he was unaware of any sedentary jobs that would allow a person to lie down four times per day for a period of 30 minutes to an hour. (AR. 838). After the hearing, the ALJ sent written interrogatories to medical expert Dr. Gayle Humm. (A.R.760-768). Dr. Humm reviewed Plaintiffs medical records and concluded that Plaintiffs impairments did not fall within any of the impairments listed in the Social Security Regulations. (A.R.761). Dr. Humm also found that Plaintiff could lift and carry up to ten pounds frequently and 11-20 pounds occasionally; could walk, sit, or stand for an hour at a time; could either walk, sit, or stand for six hours total in an eight-hour work day; could continuously reach, handle, finger or pull, and frequently push and pull with both hands; could frequently operate foot controls with both feet; could occasionally climb stairs and ramps, but never ladders The ALJ identified Plaintiffs residual functional work capacity as follows: sedentary work with postural shifts that do not require leaving the work station, occasional climbing of stairs, balancing, stooping, crouching, and crawling with no exposure to heights, ladders, scaffolds, temperature extrcmes, or operation of dangerous machinery. (A.R. 833-34). 1 5 or scaffolds; and could occasionally balance, stoop, kneel, crouch, or crawl. (A.R. 762-65). I-Iumm further found that Plaintiff could tolerate continuous exposure to humidity, wetness, dust, odor, fumes, pulmonary irritants, extreme cold and heat, and vibrations, but that Plaintiff could never tolerate exposure to unprotected heights, moving mechanical parts, or operating a motor vehicle. (A.R.766). Finally, Dr. I-Iumm stated that Plaintiff could shop, travel without a companion for assistance, walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, elimb a few steps at a reasonable pace without a handrail, prepare himself a simple meal, attend to personal hygiene, and sort, handle or use papers/files. (A.R. 767). C. The Disability Determination and the Five-Step Procednre To determine whether Plaintiff was disabled, the AU applied the five-step sequential evaluation process. The five-step sequential evaluation process as outlined by the Eighth Circuit is: (I) whether the claimant is currently engaged in a "substantial gainful activity;" (2) whether the claimant has a severe impairment-one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment contained in the listing of impairmcnts (if so, the claimant is disabled without regard to race, age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform his or hcr past relcvant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). At step one, the AU found that Plaintiff had not engaged in substantial gainful activity 6 since his alleged disability onset date of June 2, 2003. (A.R. 18). At step two, the AU found that Plaintiff had the following severe impairments: "a history of disc herniation, lumbar degenerative disc disease and lumbar degenerative facet disease with a subsequent microdiskectomy [sic] in 2002 followed by a repeat discectomy and fusion after re-injury in 2003, and L4-5 anterior discectomy spacer posterior fusion in 2004, and a chronic pain syndrome." (AR. 19). The AU concluded that these impairments, either individually or in combination, did not meet or medically equal one of the listed disabilities under the third step. (AR.20). After reviewing the medical records, the AU determined Plaintiffs residual functional capacity.' (A.R.20-22). The AU concluded that from June 2, 2003 through October 3,2005, Plaintiff was "unable to do sustained work activities in an ordinary work setting on a regular and continuing basis" and was thus under a disability as defined by the Social Security Act. (AR. 20, 22). In coming to this conclusion, the AU found credible Plaintiffs reported limitations, and noted that these limitations were not "inconsistent with his history of multiple procedures and rehabilitation efforts during this time period." (A.R. 20). The AU found that this period of disability ended on October 4,2005, when "medical improvements occurred." (A.R.22). The AU determined that the medical improvements related to Plaintiffs ability to work and that Plaintiff: "retained rcsidual functional capacity to perform sedentary work as defined in 20 C.F.R. 404. I567(a) except who requires postural shifts that do not require leaving the workstation, who can occasionally climb stairs, balance, stoop, crouch, and crawl, 2 The AU must determine the claimant's residual functional capacity before proceeding to step four of the scquential evaluation process. 20 C.F.R. § 404.1520(e). 7 occasionally reach overhead, and who should not be exposed to heights, ladders, scaffolds, temperature extremes, or operation of dangerous machinery." (A.R.22). The AU concluded that Plaintiffs "statements concerning the intensity, persistence, or functionally limiting effects of pain or other symptoms are not credible beginning on October 4, 2005, to the extent that they are inconsistent with the residual functional capacity assessment. .." (A.R.23). II. Standard of Review When considering an AU's denial of social security benefits, a district court must determine whether the AU's decision "complies with the relevant legal requirements and is supported by substantial evidence as a whole." Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)). "Substantial evidence is 'less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Pate-Fires, 564 F.3d at 942 (quoting Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). A district court must "consider both evidence that supports and evidence that detracts from the Commissioners's decision." Pate-Fires, 564 FJd at 942 (citations omitted). Additionally, "[a]s long as substantial evidence in the record supports the Commissioner's decision, [the court] may not reverse it because substantial evidence exists in the record that would have supported a contrary outcome, or because [the court] would have decided the case differently." McKinney v. Apfel, 228 F.3d 860,863 (8th Cir. 2000) (internal citations omitted). III. Discussion 8 A. Severe Impairments Plaintiff contends that he was prejudiced by the ALl's failure to develop evidence of severe impairments at step two of the five-step sequential evaluation process. Specifically, Plaintiff claims that the ALl should have considered Plaintitrs alleged right-eye blindness. In the Eighth Circuit, "the ALl bears a responsibility to develop the record fairly and fully, independent of the claimant's burden of the case." Snead v. Barnhart, 360 F.3d 834, 837 (8th Cir. 2004). An ALl is under no obligation, however, "to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability." Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (quoting Brockman v. Sullivan, 987 F.2d 1344, 1348 (8th Cir. 1993». While the administrative record in this case contained medical documents referencing Plaintiffs alleged right-eye blindness, Plaintiff neither mentioned the blindness on his application for benefits, nor offered it at the hearing as a basis for finding disability. The ALl's step-two determination was thns proper, and the ALl was not required to further investigate Plaintifrs right-eye blindness. B. Substantial Evidence Supporting the ALJ's Step Three Findings At step three of the sequential evaluation process, the ALl must determine whether a claimant has any impairment that meets or equals an impairment described in the Social Security Act's Listing ofImpairments. 20 C.F.R. § 404. I 520(a)(4)(iii). Plaintiff argues that substantial evidence does not support the ALl's finding that Plaintiffs impairments did not meet or equal a listed impairment. Specifically, Plaintiff claims that his spinal impairment meets or equals the elements of Listing 1.04. "The burden of proof is on the plaintiff to establish that his or her impairment meets or 9 equals a listing." Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (citations omitted). "To meet a listing, an impairment must meet all of the listing's specified criteria." Id. (citing Sullivan v. Zebley, 493 U.S. 521,530 (1990) ("An impairment that manifests only some of these criteria, no matter how severely, does not qualify."». A mere diagnosis of an impairment for which there is a listing does not by itself establish that the impairment meets the listing. Harris v. Barnhart, 356 FJd 926, 929 (8th Cir. 2004). '''Medical equivalence must be based on medical findings.''' Johnson, 390 F.3d at 1070 (quoting 20 C.F.R. § 416.926(b». An impairment is "medically equivalent to a listed impairment ... if it is at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 404. I526(a). The specified criteria for 20 C.F.R. Pt. 404, Subpt. P, App. § 1.04 concerning disorders of the spine, is as follows: 1.04 Disorders of the spine (e.g. herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including cauda equina) or the spinal cord. With: A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia resulting in the need for changes in position or posture more than once every 2 hours; or C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, 10 and resnlting in inability to ambulate effeetively, as defined in 1.00B2b. The AU did not err in eoncluding that Plaintiff does not meet Listing 1.04. Following Plaintiff's August of2004 surgery, he had negative straight-leg raising tests, and the reeord showed no evidenee of high-grade stenosis, new herniation or spinal arachnoiditis. (AR. 222223, 568, 579). Further, Dr. Humm, the medical expert who responded to the AU's post-hearing interrogatories, concluded that Plaintiff's impairments "do not meet the requirements of any of the Listings." (A.R. 761); see Ostronski v. Chatel', 94 FJd 413, 417 (8th Cir. 1996) ("The AU is entitled to rely on the opinions of reviewing physicians when eonsidering whether the claimant meets the requirements ofa listed impairment.") (eitation omitted). Dr. Humm specifieally considered Listing 1.04, and found that Plaintiff's impairments did not fall within 1.04 beeause there was "no evidenee of weakness or gait impairment." (AR.761). Plaintiff argues that because doetors found that he had an "antalgic gait,"] he meets the criteria ofsubseetion 1.04(c). To meet subsection 1.04(c), a claimant must be unable to "ambulate effectively." 20 C.F.R. Pt. 404, Subpt. P, App. § 1.04(c). Ineffective ambulation is defined as having "insufficient lower extremity functioning to permit independent ambulation without the usc ofa hand-held assistive device(s) that limits the functioning of both upper extremities." 20 C.F.R. Pt. 404, Subpt. P, App. § 1.00(B)(2)(b). Examples of ineffective 3 In July and August of2005, Dr. Christopher Dietrich found that Plaintiff's gait was "somewhat antalgic but [Plaintiff] moves around without significant distress." (A.R. 576, 579). Dr. Dietrich further noted that Plaintiff could walk on his toes and heels without difficulty, and was able to squat. (AR.576). In July of2006, Dr. Steven Frost noted that Plaintiff had an antalgic gait. (AR. 604). II ambulation include: "the inability to walk without the use of a walker, two crutches or canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail." rd. Dr. Humm considercd the above-noted examples of ineffective ambulation and found that Plaintiff had the ability to engage in all of the described activities. (A.R.766-67). The Court thus finds that substantial evidence support's the ALJ's findings that Plaintiffs impairments do not meet or cqual any impairment laid out in thc Listing ofImpairments. C. Assessment of Plaintifrs Residual Functional Capacity as of October 4, 2005 The ALJ found that beginning on October 4,2005, Plaintiff possessed the residual functional capacity to perform sedentary work with certain restrictions. (A.R. 22). In doing so, the ALJ concluded that the "[Plaintiffs] medically determinable impairments could reasonably be expected to produce the alleged symptoms; however, the [Plaintiffs] statements concerning the intensity, persistence, or functionally limiting effects of these symptoms are not credible beginning on October 4,2005, to the extent they are inconsistent with the [ALJ's] residual functional capacity assessment ..." Plaintiff now contends that the ALl's credibility assessment of Plaintiffs complaints of disabling pain was unsupported by substantial evidence. "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). When evaluating subjective complaints, an ALJ must consider "objective medical evidence, as well as any evidence relating to the so-called Polaski factors, namely: (1) a claimant's daily activities; (ii) the 12 duration, frequency, and intensity of the claimant's pain; (iii) precipitating and aggravating factors; (iv) dosage, effectiveness, and side effects of medication; and (v) functional restrictions." Guilliams v. Barnhart, 393 F.3d 798,801-02 (8th Cir. 2005) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984». Although an ALl may discount a claimant's subjective complaints if there are "inconsistencies in the record as a whole," the ALJ should "'detail the reasons for discrediting the testimony and set forth the inconsistencies found." Id. (citing Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003». "While an ALl may not disregard subjective pain allegations solely because they are not fully supported by objective medical evidence, an ALl is entitled to make a factual determination that a claimant's subjective pain complaints are not credible in light of objective medical evidence to the contrary." Baker v. Barnhart, 457 F.3d 882, 892-93 (8th Cir. 2006) (internal citations omitted). When an ALl "explicitly discredits a claimant's testimony and gives good reason for doing so, [the court] will normally defer to that judgment. " Finch v. Astrue, 547 F.3d 933, 935 (2008) (internal quotations omitted). Here, the AU considered both Plaintiffs statements and the objective medical evidence before reaching the conclusion that Plaintiff's complaints were not credible. (A.R. 23). The ALl noted inconsistencies between Plaintiffs statements and the administrative record. 4 During the hearing, Plaintiff testified that his pain , This Court has conducted a detailed review of the record and observed that the ALl cited a couple of inconsistencies between Plaintiffs testimony and the administrative record that do not actually exist. The ALl stated that Plaintiff claimed an inability to drive due to pain and the medication he was taking. (A.R.24). The Plaintiff did not testify that he was unable to drive, nor does such an allegation appear in the record. The ALl noted that Plaintiff reported he would walk 400 meters, but testified that he could only walk IOO feet. However, Plaintiffs actual testimony was that he used to be able to walk 400 meters, not that he could do so now. These errors are relatively minor and do not alter the fact that objective medical evidence indicated that Plaintiff had the capacity to work, and Plaintiff's testimony about his symptoms 13 medieations used to make him "real drowsy." (A.R.814). As the ALJ noted, however, "the medieal reeords, sueh as offiee treatment notes, do not eorroborate those allegations," as PlaintitT never mentioned these side effeets to his physieians and he denied any sueh side effeets in his disability report. (A.R. 24). Further, the AU pointed out that although Plaintiff alleged disabling pain symptoms, no treating or examining physieian ever eoneluded that Plaintiff was disabled or that Plaintiff had work limitations exeeeding those identified by the ALl (A.R. 24); see Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010) (explaining that one faetor to eonsider in determining a elaimant's eredibility is the "absenee of objeetive medieal evidenee to support the [elaimant's] eomplaints."); Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir. 1994) (the AU was entitled to find that the absenee of an objeetive medieal basis to support elaimant's subjeetive eomplaints was an important faetor in evaluating the eredibility of her testimony and her eomplaints). Finally, the AU took issue with Plaintiff's testimony that he had to lie down several times throughout the day to relieve his baek pain. The AU pointed out that the reeord eontained no statement by a physieian that Plaintiff's medieal eondition requires him to lie down to relieve pain. See generally Patriek v. Barnhart, 323 F.3d 592 (8th Cir. 2003) (AU properly diseounted elaimant's need to lie down based on, among other things, the laek of medieal evidenee to support her elaim). Plaintiff asserts that the AU, in making his eredibility determination, should have explieitly eonsidered Plaintiff's work history and the testimony of lay witness Beeky Ritter. While Plaintiff is eorreet that Polaski requires an AU to take into aeeount elaimant's prior work reeord, the "ALl's deeision need not inelude a diseussion of how every Polaski faetor relates to and limitations did not jibe with the objeetive medieal findings. 14 the claimant's credibility." Casey v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007). Plaintiffs claim that the ALl had to explicitly consider Ritter's testimony also lacks merit. Although it is preferable that an ALl specifically explain the reasons for rejecting the testimony of a lay witness, the "failure to do so does not always result in a remand." Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008). Where the lay witness testimony is the same as the evidence the ALl rejected for reasons explained in the opinion, the Eighth Circuit has "refused to remand based on an arguable deficiency in opinion-writing technique that had no effect on the outcome of the case." rd. (internal quotation marks and citation omitted) (citing Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Lorenzen v. Chatel', 71 F.3d 316,319 (8th Cir. 1995»; see also Reynolds v. Chatel', 82 F.3d 254, 258 (8th Cir. 1996) (ALl's failure to make a specific finding concerning rejection of claimant's wife's testimony did not require reversal because the ALl's conclusion was supported by substantial evidence). Here, Ritter's testimony was essentially the same as Plaintiffs, which the ALl rejected for reasons explained in his opinion and supported by substantial evidence. Thus, this Court need not remand the case to enable the ALl to explain why he rejected Becky Ritter's testimony; those reasons would be the same as why the ALl did not rely on certain portions of Plaintiffs testimony. The Court finds that substantial evidence supported the ALl's credibility determination. Plaintiff also argues that the ALl failed to weigh physician opinions properly in determining that Plaintiff was no longer disabled as of October 4,2005. Specifically, Plaintiff claims that it was "logically impossible" for the ALl to first find Plaintiff disabled, yet then find that this disability ended, when both of these determinations were based on the same medical evidence. This argument does not justify reversal under the circumstances. In finding Plaintiff 15 disabled from June 2, 2003 through October 3, 2005, the AU noted that Plaintiff underwent "multiple surgical procedures and rehabilitation efforts during this time period," and that until at least July of2005, it was unclear whether Plaintiffs August 9, 2004 fusion surgery had fully healed. (A.R. 20). By Oetober 4, 2005, however, Plaintiffs fusion had healed. Dr. Rand Schleusener, Plaintiffs treating physician, had found that Plaintiff had reached "maximum medieal improvement" and that Plaintiff was "capable of sedentary work with largely some light duty work, [with the ability] to change position frequently, and no prolonged lifting of more than about ten pounds." (A.R.437). In concluding that Plaintiff was no longer disabled as of October 4,2005, the AU appropriately gave substantial weight to Dr. Schleusener's findings. See House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) ("A treating physician's opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostie techniques and is not inconsistent with the other substantial evidence.") (internal quotation omitted); Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) ("The opinion ofa treating physician is aecorded special deferenee under the social seeurity regulations. "). In the present case, Dr. Sehleusener's findings were well-supported by x-rays, a July 2005 CT sean, and physical examinations and assessments of Plaintiff. (A.R. 222-23, 442, 450). The AU's determination that Plaintiff was no longer disabled as of October 4,2005, is further supported by additional evidence in the record. As noted previously, State agency Drs. Whittle and Entwistle both concluded in 2006 that Plaintiff could engage in "sedentary-light work" with certain restrictions. (A.R. 161, 183). Dr. Humm, who examined Plaintiffs medical records in 2008, agreed that Plaintiff eould engage in sedentary work with certain restrictions. 16 (A.R. 762-63). See Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004) (explaining that while it is improper for an AU to rely solely on the opinion of a non-examining physician, such an opinion may be considcred by the AU as part of the record as a whole). The abundance of medical evidence provides substantial evidence that the AU was justified in his determination of Plaintiffs disability and residual functional capacity. See generally Moore v. Astrue, No.1 01126,2010 Westlaw 4103693 (8th Cir. Oct. 20, 2010) ("[T]he record must contain at least somc medical evidence to support the AU's determination of residual functional capacity."). Plaintiff also argues that substantial evidence did not support a finding of medical improvement sufficient to permit sustained work activity. In making this argument, Plaintiff relies on Burress v. Apfel, 141 F.3d 875 (8th Cir. 1998). In Burress, the AU found that the claimant was disabled for a closed period of time, but that this disability ended when the claimant expericnced medical improvement. Id. The Eighth Circuit reversed thc ALl's decision, holding that the AU's finding of medical improvement was not supported by substantial evidence. Id. at 881. Plaintiffs reliance on Burress is misplaced, however, as it differs from the present case in two important ways. First, the AU in Burress did not "specifically identify or otherwise explain" why he found medical improvement on a certain date. Id. at 879. Second, the medical reports the AU relied on in finding medical improvement werc all dated subsequent to the closed period of disability. Here, the AU identified Dr. Schleusener's October 4,2005 medical opinion as the very reason for finding medical improvement on this specific date. In short, substantial evidence supports the AU's findings, and there are material differcnces between this case and Burress. D. Step Five Findings 17 Plaintiff argues that the ALl's step Eve Endings were not supported by substantial evidence and critiques the testimony of vocational expert Jerry Gravatt as based on a flawed hypothetical concerning Plaintiffs residual functional capacity. "A hypothetical question posed to the vocational expert is suftlcient if it sets forth impairments supported by substantial evidence in the record and accepted as true." Goffv. Barnhart, 421 F.3d 785,794 (8th Cir. 2005) (internal quotations omitted). "A vocational expert's testimony based on a properly phrased hypothetical question constitutes substantial evidence." Haggard v. Apfel, 175 F.3d 591, 595 (1999) (citations omitted). The testimony of a vocational expert who responds to a hypothetical question based only on the opinions of consulting physiciaus does not constitute substantial evidence "upon which to deny beneEts," however. See Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). Here, as explained in Section III C of this opinion and order, the ALl's residual functional capacity assessment was supported by substantial evidence. Further, the ALl included only those restrictions supported by the record as a whole in the hypothetical posed to the vocational expert. See Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir. 2010) ("The hypothetical question need only include those impairments and limitations found credible by the ALl ") (internal quotations omitted). The vocational expert's testimony provided substantial evidence upon which the ALl properly based his opinion that Plaintiff is "able to perform a signiEcant number ofjobs in the national economy." (A.R.26). IV. Conclusion It is therefore ORDERED that the Order of the Commissioner is aftlrmed and that Enal judgment 18 hereby enters affirming the decision of the Commissioner. Dated October 27, 2010. BY THE COURT: 19
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