Paula Michel v. Carolyn W. Colvin , 640 F. App'x 585 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3460
___________________________
Paula Sue Michel
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Northern District of Iowa - Dubuque
____________
Submitted: September 21, 2015
Filed: March 23, 2016
[Unpublished]
____________
Before MURPHY, MELLOY, and SMITH, Circuit Judges.
____________
PER CURIAM.
Paula Michel appeals from the district court's1 order affirming the
Commissioner of Social Security Administration's ("Commissioner") denial of
Michel's application for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq. We affirm.
I. Background
Michel was born on September 7, 1966, and is a college graduate. Prior to
October 2009, she was employed for 20 years as a speech pathologist at the
Mississippi Bend Area Education Agency. She alleges that she became disabled
beginning October 22, 2009, due to chronic fatigue syndrome, fibromyalgia, and
depression.
A. Medical Evidence
The medical evidence shows that Michel sought treatment for achiness in
January 2009. Dr. John Viner, M.D., diagnosed Michel with malaise, stomatitis, and
an exacerbation of chronic fatigue. In July 2009, Michel reported achiness in her
hands to Dr. Viner, but she also stated that her "[e]nergy has been pretty good." Dr.
Viner assessed hand arthritis and noted Michel's improved fatigue. But on November
2, 2009, Michel returned to Dr. Viner due to "chronic fatigue problems," asthenia, and
depression. Dr. Viner diagnosed Michel with "[i]nfluenza-like illness." On November
23, 2009, Michel reported "ongoing fever." Then, on December 8, 2009, after Michel
presented to Dr. Viner with "generalized aching" and a "low grade fever," Dr. Viner
diagnosed Michel with "[r]ecurrent chronic fatigue syndrome" and also identified an
autoimmune disease as a "consideration" due to Michel's "[d]iffuse pains." Dr. Viner
again assessed Michel with chronic fatigue syndrome when she presented to him with
a "low energy level" and muscle weakness on January 5, 2010; he did, however, note
that "Michel has had some improvement." He also reported on February 16, 2010, that
1
The Honorable Jon S. Scoles, United States Magistrate Judge for the Northern
District of Iowa, to whom the case was referred for final disposition by consent of the
parties pursuant to 28 U.S.C. § 636(c).
-2-
while Michel had chronic fatigue syndrome and "remain[ed] tired," she had also
"shown favorable response over the last 5 or 6 weeks to the addition of
methylphenidate" and was now "able to walk 10 minutes up to three times a day" and
was sleeping well. Michel continued to see Dr. Viner every three months for
medication adjustment.
Michel also underwent mental health medication management and therapy with
Susan Amundsen, a physician assistant, and Gerald Odefey, a psychologist, for
anxiety and depression, with predominately "unchanged" findings from January 2009
through June 2011. Michel reported increased depression to Amundsen on January 6,
2010, one day after Dr. Viner had again assessed Michel with chronic fatigue
syndrome. In April 2010, Michel reported to Amundsen that she had "decided not to
go back to her job [and] need[ed] to look for something else that will have insurance."
In November 2010, Michel reported increased irritability with a change in her
medication.
On April 30, 2010, Michel saw Dr. George Isaac, M.D., a rhematologist. She
complained of muscle and joint aches in her hands, neck, upper and lower back, hips,
knees, and ankles. Dr. Isaac found "no significant limited range of motion in
[Michel's] cervical, thoracic, or lumbar spine on passive range of motion," but he
noted that "the patient is not moving very well." Although Michel "complain[ed] of
some pain with passive range of motion of her cervical spine," Dr. Isaac found "no
evidence of any radiculopathy."2 And, while Dr. Isaac noted "some tenderness
involving [Michel's] trapezius muscle and anterior upper chest," he found that Michel
had a "good range of motion in the shoulders, elbows, wrists, and hand joints without
any swelling, redness, or increased warmth" and "reasonable grip strength bilaterally"
despite some tenderness. As to Michel's lower extremities, Dr. Isaac noted "mild
2
"Radiculopathy is defined as a disease of the nerve roots." Broadbent v. Harris,
698 F.2d 407, 410 n.1 (10th Cir. 1983) (citing Dorland's Illustrated Medical
Dictionary (25th ed.)).
-3-
tenderness involving both hips"; a normal range of motion "when passively forced,
but actively . . . some limited range of motion on external rotation"; "no problems on
flexion and abduction"; "no swelling, redness, or increased warmth in her knees"; and
"no evidence of any rashes." Dr. Isaac diagnosed fibromyalgia and chronic fatigue
syndrome. In assessing Michel's condition, Dr. Isaac noted that Michel "has a mind
set that she has chronic fatigue and she seems to have lost hope in getting better which
is the biggest problem that we usually face in these conditions." He informed Michel
"that it would be up to her whether she wants to get better or not because [he] could
start her on all of the medications in the world and that is not going to help." At
Michel's May 28, 2010 visit, Dr. Isaac noted that while Michel still had "generalized
tenderness," her "pain has gotten significant[ly] better with [medication]"; he also
observed that "her coping with pain will also get better." On June 28, 2010, Dr. Isaac
again acknowledged that Michel had "generalized tenderness" but stated that he was
"very pleased with her progress with the [medication]." Michel returned to Dr. Isaac
monthly from October through December 2010, with reports of generalized
tenderness; pain in her shoulders, elbows, fingers, and right thumb; and difficulty
sleeping.
On November 17, 2010, Dr. Laura Griffith, D.O., a state-agency medical
consultant, reviewed Michel's medical records and completed a physical residual
functional capacity assessment (RFC). Dr. Griffith opined that Michel could (1)
occasionally lift or carry ten pounds, (2) frequently lift or carry less than ten pounds,
(3) stand or walk with normal breaks for at least two hours in an eight-hour workday,
(4) sit with normal breaks for about six hours in an eight-hour workday, and (5) push
or pull without limitations. Further, Dr. Griffith opined that Michel could occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. Dr. Griffith found
that Michel should avoid concentrated exposure to extreme cold and extreme heat. Dr.
Griffith found no manipulative, visual, or communicative limitations for Michel. Dr.
Dennis Weis, M.D., reviewed Michel's medical records and affirmed Dr. Griffith's
opinion in April 2011.
-4-
On November 24, 2010, Dr. Keith F. Gibson, Ph.D., performed a consultative
psychological evaluation of Michel. Dr. Gibson observed that Michel walked with a
"slow, cautious gait" and that her "[g]eneral body movements were quiet and
subdued." He opined that Michel's "[a]ffect was appropriate to thought content" and
observed "[n]o lability3 of affect." He described her "[p]redominant mood [as]
depressed with persistent feelings of sadness and discouragement about the future."
He found her to be "anhedonic4 with increased irritability" and "preoccupied with
physical aches and pains." Dr. Gibson noted that Michel's "performance on the Mini
Mental Status Exam suggests that overall cognitive capacity is grossly intact with
some difficulties in the areas of attention, concentration, and delayed recall." He
diagnosed Michel with pain disorder and mood disorder due to chronic fatigue
syndrome with depressive features. He concluded that Michel could still remember
and understand instructions but that "[c]hronic fatigue and pain with concomitant
worry and depressive symptoms significantly impair [Michel's] capacity to maintain
attention, concentration, and pace sufficient for full-time gainful employment." He
found that she retained the "capacity to interact appropriately with others in a work
environment," "[h]er judgment remained intact," and she was capable of "mak[ing]
reasonable decisions for herself on a day-to-day basis." Nevertheless, he concluded
that Michel's "[c]hronic fatigue and chronic pain impair her capacity to respond
adaptively and flexibly to changes in the work place."
3
"According to Social Security regulations, 'emotional lability' is an 'organic
mental disorder' whose symptoms include 'explosive temper outbursts or sudden
crying, and impairment in impulse control.'" Bryan v. Comm'r of Soc. Sec., 383 F.
App'x 140, 144 n.3 (3d Cir. 2010) (quoting 20 C.F.R. Part 404 Subpart P App'x 1
(Listings) § 12.02(A)).
4
"Anhedonic is defined as 'a psychological condition characterized by inability
to experience pleasure in normally pleasurable acts.'" Petri v. United States, 104 Fed.
Cl. 537, 544 n.14 (2012) (quoting Merriam-Webster's Collegiate Dictionary 48 (11th
ed. 2003)).
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On January 13, 2011, Dr. David Christiansen, Ph.D., a state-agency
psychological consultant, reviewed Michel's medical records and completed a mental
RFC assessment for Michel. He determined that Michel was moderately limited in her
ability to (1) carry out detailed instructions, (2) maintain attention and concentration
for extended periods, and (3) complete a normal workday and workweek without
interruptions from psychologically-based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods. Dr. Christiansen
found Dr. Gibbons's opinion "consistent with the rest of the record." He concluded
that while "[c]hronic fatigue and pain, along with worry and depressive feelings
significantly impair [Michel's] capacity to maintain attention, concentration, and
pace," she retained the "capacity to maintain appropriate relationships in the work
setting," had intact judgment, and was "able to manage day-to-day activities." In April
2011, Dr. John Tedesco, Ph.D., reviewed Michel's medical records and affirmed Dr.
Christiansen's opinion.
In March 2011, Dr. Mark Niemer, M.D., evaluated Michel's fibromyalgia on
referral from Dr. Viner. A physical examination of Michel showed mild tenderness
in her neck, back, and shoulders; she had a full range of motion in all joints, full
strength, and no atrophy. Dr. Niemer assessed Michel with depressive disorder, stating
that "she is depressed and she has a lot of somatic symptoms. Where depression ends
and chronic fatigue or fibromyalgia begin is almost impossible to say." Dr. Niemer
recommended that Michel "work with Sue Amundsen about keeping her meds under
control for her depression" and "continue to exercise on a regular basis, about 20–30
minutes daily."
On March 28, 2011, Michel returned to Dr. Isaac, who noted that Michel's
recognition that she "fe[lt] better" and that her pain was "a little less," although she
still experienced achiness "in her ankles, heels, and knees." But he reiterated that
Michel did not feel as bad as she previously did. He opined that Michel was "better"
and observed that she was "at least smiling and she seems to be somewhat more
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rested." Dr. Isaac "suggested that she start[] gradual escalation of her exercise" and
"made some recommendations in regards to her medications and daily activities."
In May and June 2011, Michel went to the University of Iowa Hospitals and
Clinics and saw a medical student and Dr. Jacob Ijdo, M.D., Ph.D. Michel complained
of persistent "fatigue, myalgias, and arthralgias" since October 2009 and reported
"walking 15 minutes per day, 3 times per day, most days out of the week." A physical
examination of Michel revealed "normal strength and tone though exam limited by
pain," "[n]ormal symmetric reflexes," and a "[n]ormal gait." The medical student
diagnosed fibromyalgia, chronic fatigue syndrome, and depression. He recommended
that Michel reduce the number of medications that she is taking, which were "not
helping [Michel's] symptoms and may be causing some symptoms such as mental
fogging and flat affect." He also advised Michel "to push herself with exercise within
reasonable limits" and to avoid "daytime naps as they disturb nighttime rest."
Dr. Ijdo similarly believed plaintiff was over-medicated, resulting in sleepiness, and
he recommended no daytime naps and an increase in exercise. He too recommended
that she "simplify" her medications.
On July 25, 2011, Michel presented to Dr. Viner with stiffness and pain in her
back and hips. A physical examination of Michel revealed that Michel was "weak and
tired-appearing." He observed that she is unable "to do much activity at home." Dr.
Viner assessed Michel with "[d]isabling fibromyalgia," as well as "chronic fatigue,
autonomic dysfunction[,] and palmar hyperhidrosis." In accordance with Dr. Ijdo's
recommendation, Dr. Viner reduced one of Michel's medications. He concluded that
Michel's "functional capacity remains low" and opined that "she is disabled from
employment."
On September 17, 2012, Michel's attorney referred her to Work Systems Rehab
& Fitness for a functional capacity evaluation. Mark Blankespoor, P.T., D.P.T.,
performed the evaluation. He noted that Michel's primary diagnoses were chronic
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fatigue syndrome and fibromyalgia. Upon examination, he found "[s]ignificant
[d]eficits" in the following areas: (1) lifting/carrying; (2) pushing/pulling; (3)
positional tasks, such as elevated work, squatting, crouching, forward bending, trunk
rotation, crawling, and kneeling; (4) sitting/standing tolerance; (5) walking tolerance;
(6) stair/step ladder climbing; (7) bilateral upper extremity grip and pinch strength;
and (8) bilateral upper extremity coordination. Blankespoor determined that Michel
was capable of sedentary work but noted that "she would have significant difficulty
with performing work tasks on a full-time basis. She would not be able to safely
perform lifting, carrying, pushing, pulling, gripping, pinching, sitting, standing,
walking, dexterity or positional tasks on a continuous, day after day basis."
In October 2012, Dr. Viner completed a RFC questionnaire for Michel. He
indicated that he had routinely seen Michel every four to six weeks for the past ten
years. He opined that Michel met the American College of Rheumatology criteria for
fibromyalgia and chronic fatigue syndrome. Dr. Viner identified the following
symptoms for Michel: multiple tender points, nonrestorative sleep, chronic fatigue,
morning stiffness, muscle weakness, frequent severe headaches, numbness and
tingling, depression, and chronic fatigue syndrome. He indicated that Michel had
"daily and disabling" pain in her neck, upper back, shoulder, arms, hands/fingers, hips,
legs, and knees/ankles/feet. He also identified fatigue, movement, overuse, cold, and
stress as factors that precipitated the pain. According to Dr. Viner, Michel would
frequently experience pain or other symptoms severe enough to interfere with her
attention and concentration during a typical eight-hour workday. He concluded that
Michel would be "[i]ncapable of even 'low stress' jobs." He opined that Michel's
prognosis was "prolonged disability." Dr. Viner offered no opinions of Michel's
functional abilities; instead, he simply concluded that she was "unable to work."
B. Testimony at Administrative Hearing
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Michel filed an application for disability insurance benefits on October 5, 2010,
alleging an onset date of October 22, 2009. After an initial denial of benefits, Michel
requested a hearing before an administrative law judge (ALJ).
At the hearing, Michel testified that she last worked as a speech pathologist at
the Mississippi Bend Area Education Agency in October 2009. According to Michel,
she stopped working due to flu-like symptoms and fibromyalgia pain; she stated that
she could no longer write or type for more than five minutes at a time. She testified
to having pain from "the top of [her] neck all the way down through [her] ankles, not
every single spot, but probably 80 percent of that area." She also reported having
fatigue that made it difficult for her to concentrate and focus. She explained that she
tries to walk for approximately ten minutes in the morning for exercise but becomes
short of breath and achy. She estimated that she could lift 15 to 20 pounds very
briefly.
The ALJ provided vocational expert (VE) Julie Svec with a hypothetical for an
individual with Michel's age, education, and past relevant work and who "has some
functional limits, mainly that the worker is limited to performing sedentary work as
that term is defined in the Dictionary of Occupational Titles [(DOT)], and in addition,
this worker can only occasionally stoop, crouch, kneel and crawl, and the worker is
unable to climb ladders, ropes or scaffolds at all." The ALJ also asked the VE to
assume that the individual could not "be exposed to any extraordinary hazards on the
job, . . . mean[ing] work near dangerous moving machinery or work at unprotected
heights where someone sort of lost control of her body or lost strength or for whatever
reason they would be in serious danger." The ALJ asked the VE " to assume that this
worker needs work indoors in a climate-controlled environment much like would be
found in a typical office setting or retail store, something like that, air-conditioned,
heated with no real dust, gases." Finally, the ALJ asked the VE "to assume that this
worker can do only the most simple and repetitive and routine types of work, work
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that doesn't require any close attention to detail at all and doesn't require the use of any
independent judgment on the job."
The VE replied that "[t]here is an occupational base that would include
sedentary and unskilled jobs such as work as a document preparer," pursuant to DOT
249.587-018. The VE identified 500 document-preparer positions in "this area" and
50,000 positions nationwide. The VE also identified a ticket checker as another
sedentary, unskilled position, pursuant to DOT 219.587-010. She testified that 400
ticket-checker positions existed in "this area" and that 13,000 positions existed
nationwide. Finally, she gave an order clerk as a third example of a sedentary,
unskilled position, pursuant to DOT 209.567-014. She identified 400 order-clerk
positions in "this area" and 23,000 positions nationwide.
The ALJ then provided the VE with a second hypothetical, which was identical
to the first hypothetical, except that "due to fatigue, the worker would be unable to use
their [sic] hands to perform any job task whatsoever, in other words[,] cannot grasp,
finger, handle anything at all more than a total of two hours a workday." The VE
testified that under such limitations, no occupational base would exist for that
individual.
C. ALJ's Disability Determination
The ALJ determined that Michel is not disabled. The ALJ undertook the
familiar five-step sequential process for determining disability. See Goff v. Barnhart,
421 F.3d 785, 790 (8th Cir. 2005) ("During the five-step process, the ALJ considers
(1) whether the claimant is gainfully employed, (2) whether the claimant has a severe
impairment, (3) whether the impairment meets the criteria of any Social Security
Income listings, (4) whether the impairment prevents the claimant from performing
past relevant work, and (5) whether the impairment necessarily prevents the claimant
from doing any other work." (quotation and citation omitted)).
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The ALJ applied the first step of the analysis and determined that Michel had
not engaged in substantial gainful activity since October 22, 2009. See Kluesner v.
Astrue, 607 F.3d 533, 537 (8th Cir. 2010) ("The ALJ first determines if the claimant
is engaged in substantial gainful activity. If so, the claimant is not disabled."). At the
second step, the ALJ concluded from the medical evidence that Michel "has the
following severe impairments: fibromyalgia; mood disorder; pain disorder; chronic
fatigue syndrome." See id. ("Second, the ALJ determines whether the claimant has a
severe medical impairment that has lasted, or is expected to last, at least 12 months.").
At the third step, the ALJ determined that Michel did "not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments" in the regulations. See id. ("Third, the ALJ considers the severity
of the impairment, specifically whether it meets or equals one of the listed
impairments. If the ALJ finds a severe impairment that meets the duration
requirement, and meets or equals a listed impairment, then the claimant is disabled.").
At the fourth step, the ALJ determined Michel's RFC consistent with the first
hypothetical posed to the VE; that is, that Michel could perform sedentary work. See
id. ("However, the fourth step asks whether the claimant has the residual functional
capacity to do past relevant work. If so, the claimant is not disabled."). In determining
Michel's RFC, the ALJ discussed in great detail the opinions of Michel's treating
sources, examining sources, and non-examining sources and the weight that the ALJ
afforded to these sources.
At step five, the ALJ determined that based on her age, education, prior work
experience, and RFC, Michel could work at jobs that existed in significant numbers
in the national economy; therefore, she was not disabled. See id. ("Fifth, the ALJ
determines whether the claimant can perform other jobs in the economy. If so, the
claimant is not disabled.").
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Michel requested review of the ALJ's decision to the Appeals Council of the
Social Security Administration ("Appeals Council"). The Appeals Council denied
Michel's request for review. Michel then sought review in the federal district court,
which affirmed the ALJ's decision.
II. Discussion
On appeal, Michel argues that (1) the RFC was not based on substantial
evidence because the ALJ gave insufficient weight to the opinions of Dr. Viner,
Blankespoor, Dr. Isaac, and Dr. Gibson; (2) the ALJ erred in evaluating her
impairments of chronic fatigue and fibromyalgia; and (3) the VE's testimony was
based on an incomplete hypothetical that did not take into account all of her
impairments and limitations.
In reviewing the ALJ's decision, "[w]e apply the same review standard as the
district court 'and uphold the . . . denial of benefits . . . if the ALJ's decision is
supported by substantial evidence in the record as a whole.'" Wright v. Colvin, 789
F.3d 847, 852 (8th Cir. 2015) (alterations in original) (quoting Juszczyk v. Astrue, 542
F.3d 626, 631 (8th Cir. 2008)). We have defined "'[s]ubstantial evidence'" as "'less
than a preponderance, but enough that a reasonable mind might accept it as adequate
to support a decision.'" Id. (quoting Juszczyk, 542 F.3d at 631). "'We defer heavily to
the findings and conclusions of the Social Security Administration.'" Id. (quoting
Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)). "We must consider evidence that
both supports and detracts from the ALJ's decision, but we will not reverse an
administrative decision simply because some evidence may support the opposite
conclusion." Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (quotations and
citations omitted). After reviewing the record, if we "find[] it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the
ALJ's findings," then we "must affirm the ALJ's decision." Id. (quotations and
citations omitted).
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A. RFC Assessment
As explained supra, the fourth step of the sequential process "requires the ALJ
to consider whether the claimant retains the RFC to perform her past relevant work."
Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (quotation and citation
omitted). The ALJ is required to "determine the claimant's RFC based on all relevant
evidence, including medical records, observations of treating physicians and others,
and claimant's own descriptions of [her] limitations." Id. (alteration in original)
(quotation and citation omitted). "It is the ALJ's function to resolve conflicts among
the opinions of various treating and examining physicians." Id. (quotation and citation
omitted). The claimant "bears the burden of proving her RFC." Id.We have previously described "how the ALJ weighs medical opinions" under
the Social Security Administration regulations. Wagner v. Astrue, 499 F.3d 842, 848
(8th Cir. 2007). Relevant to the present case, the ALJ affords a treating source's
opinion "controlling weight" if that opinion "'is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the applicant's] record.'" Id. at 848–49 (alteration
in original) (quoting 20 C.F.R. § 404.1527(d)(2)). "[W]hile a treating physician's
opinion is generally entitled to 'substantial weight,' such an opinion does not
'automatically control' because the hearing examiner must evaluate the record as a
whole." Id. at 849 (quoting Wilson v. Apfel, 172 F.3d 539, 542 (8th Cir. 1999)). When
a treating physician's opinion is in conflict with other substantial medical evidence,
then the ALJ may afford less weight to that physician's opinion. Id. (citing Prosch v.
Apfel, 201 F.3d 1010, 1013–14 (8th Cir. 2000)). An ALJ is also entitled to credit
"'other medical evaluations over that of the treating physician when such other
assessments are supported by better or more thorough medical evidence.'" Id. (quoting
Prosch, 201 F.3d at 1014). The ALJ must resolve any conflicts that arise between a
one-time consultant's opinion and a treating physician's opinion. Id. (citing Cantrell
v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000)). Generally, "'the report of a consulting
physician who examined a claimant once does not constitute 'substantial evidence'
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upon the record as a whole, especially when contradicted by the evaluation of the
claimant's treating physician.'" Id. (quoting Cantrell, 231 F.3d at 1107). But two
exceptions exist to this general rule. Id. We will uphold an ALJ's discounting or
disregarding of a treating physician's opinion "'(1) where other medical assessments
are supported by better or more thorough medical evidence, or (2) where a treating
physician renders inconsistent opinions that undermine the credibility of such
opinions.'" Id. (quoting Cantrell, 231 F.3d at 1107).
1. Dr. Viner
We begin with the opinion of Dr. Viner, Michel's treating physician. In
weighing Dr. Viner's opinions, the ALJ afforded "little weight" to Dr. Viner's
"opinion" that he expressed on "several occasions" that Michel "was disabled." The
ALJ's conclusion with respect to Dr. Viner's opinions that Michel is "disabled" and
"unable to work" is correct. "[A] treating physician's opinion that a claimant is
disabled or cannot be gainfully employed gets no deference because it invades the
province of the Commissioner to make the ultimate disability determination." Perkins,
648 F.3d at 898 (emphasis added) (quotation and citation omitted).
In addition, the ALJ pointed out that "while Dr. Viner reported that the claimant
was 'unable to work'" on the RFC questionnaire, he "failed to fill out any functional
limitations resulting from her diagnosed impairments." "The process by which the
ALJ approached Dr. [Viner's] evaluation is consistent with our precedent. Indeed, we
have recognized that a conclusory checkbox form has little evidentiary value when it
'cites no medical evidence, and provides little to no elaboration.'" See Anderson v.
Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (quoting Wildman v. Astrue, 596 F.3d 959,
964 (8th Cir. 2010)). "We have stated that '[a] treating physician's opinion deserves
no greater respect than any other physician's opinion when [it] consists of nothing
more than vague, conclusory statements.'" Toland v. Colvin, 761 F.3d 931, 937 (8th
Cir. 2014) (alterations in original) (quoting Wildman, 596 F.3d at 964).
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The ALJ also afforded "little weight" to Dr. Viner's opinions, finding that such
opinions "are both internally inconsistent within the report and externally inconsistent
with the doctor's prior treatment records." The most glaring inconsistency that the ALJ
identified was Dr. Viner's statement "that [Michel's] 'symptoms and limitations on this
questionnaire' applied to dates for the last '10 years[.']" As the ALJ noted, this
statement contradicts Michel's own work history, which shows that she "continued
working successfully until October 2009." This inconsistency with Michel's work
history "alone is sufficient to discount the opinion." See Goff, 421 F.3d at 790–91
("While the ALJ also found Dr. Prihoda's opinion to be internally inconsistent, we
need not comment on that, as an appropriate finding of inconsistency with other
evidence alone is sufficient to discount the opinion.").5
Accordingly, we find that the ALJ considered Dr. Viner's opinions at great
length and provided sufficient bases for the "little weight" afforded to those opinions.6
5
The ALJ also identified three other inconsistencies in Dr. Viner's opinions.
First, the ALJ cited Dr. Viner's indication that Michel experienced pain in her feet; the
ALJ found that "medical records failed to indicate that [Dr. Viner] ever observed any
pain symptoms in her feet." Second, the ALJ found Dr. Viner's conclusion that
"'changing weather' did not cause [Michel] pain" inconsistent with Michel's testimony
"that 'rainy days' are particularly hard on her." Third, the ALJ noted the inconsistency
between Dr. Viner's report of Michel's "'frequent' problems with attention and
concentration" and Dr. Viner's treatment notes, which "failed to indicate that the
doctor objectively found any problems outside of [Michel's] subjective complaints."
The ALJ also noted that the Dr. Viner's report of Michel's problems with attention and
concentration was inconsistent with Michel's "mental health providers [who] indicated
that her concentration was good."
6
Michel also argues that if the ALJ found something "unclear or missing" from
Dr. Viner's opinion, then the ALJ should have sought clarification from Dr. Viner
about his opinion. But "[a]n ALJ is not required to seek 'clarifying statements from a
treating physician unless a crucial issue is undeveloped.'" Grable v. Colvin, 770 F.3d
1196, 1201 (8th Cir. 2014) (quoting Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004)). "That is not the case here. The ALJ considered numerous medical assessments
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2. Physical Therapist Blankespoor
Michel also claims that the ALJ did not properly consider the opinion of
Blankespoor, the physical therapist who performed the functional capacity evaluation.
The ALJ afforded "little weight" to Blankespoor's opinion that Michel "would not be
able to perform anything 'on a full-time basis'" because the ALJ found that "this
opinion appeared to be based solely on [Michel's] subjective complaints and not from
any objective medical testing." The ALJ noted that Michel had "reported difficulties
with 'performing significant lifting, carrying, gripping, pinching, pushing and pulling
as well as prolonged sitting, standing, walking, reaching, bending, squatting and
climbing.'" According to the ALJ, such "difficulties" "were essentially the same
limitations Mr. Blankespoor noted when indicating that [Michel] would be unable to
perform work on a full-time basis." The ALJ also explained that "while testing may
have indicated [Michel's] ability to lift, there was no evidence with which the therapist
could form an opinion on her ability to perform this activity full-time, outside of her
subjective allegations." Finally, the ALJ found that "other medical evidence of record
from [Michel's] treating and consult[ing] rheumatologists indicated normal range of
motion and good strength throughout the upper and lower extremities," in contrast to
Blankespoor's findings. "Based on these inconsistencies, the [ALJ] afford[ed] the
opinions little weight."
and records in weighing Dr. [Viner's] opinion. No further clarification was required."
Id. at 1201–02 (citing Stormo, 377 F.3d at 806).
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"A physical therapist7 is not an 'acceptable medical source' whose opinion is
entitled to substantial weight." Castro v. Barnhart, 119 F. App'x 840, 842 (8th Cir.
2005) (per curiam) (quoting 20 C.F.R. §§ 404.1513, 416.913). Instead, "[a] therapist's
assessment is 'other medical evidence.'" Id. (quoting 20 C.F.R. § 404.1513(d)(1)).
"Statements from a physical therapist are entitled to consideration as additional
evidence, but are not entitled to controlling weight." Hatton v. Comm'r of Soc. Sec.
Admin., 131 F. App'x 877, 878 (3d Cir. 2005) (citing 20 C.F.R. § 404.1513(d)). "[A]
physical therapist's opinion can be considered, but the opinion is entitled to less
weight than that accorded to the opinions of acceptable medical sources." Komar v.
Apfel, 134 F.3d 382, 1998 WL 30267, at *2 (10th Cir. Jan. 9, 1998) (Table) (citing
Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996)). "When assigning weight to 'other
medical evidence,' the ALJ may consider any inconsistencies with the record." Castro,
119 F. App'x at 842 (citing 20 C.F.R. § 416.927(d)(4)).
Here, the ALJ explained how Blankespoor's finding that Michel was unable to
perform work on a full-time basis "contradicted the findings of other acceptable
medical sources in the record, and the ALJ properly relied on the acceptable medical
sources." See Huff v. Astrue, 275 F. App'x 713, 716 (9th Cir. 2008) (memorandum)
(citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). Furthermore, "[t]he ALJ
was entitled to give less weight to [Blankespoor's] opinion [as to Michel's capability
to perform work tasks on a full-time basis], because it was based largely on [Michel's]
7
While Blankespoor's credentials indicate that he holds a doctor of physical
therapy degree, they do not reflect that he is a medical doctor or other acceptable
medical source. See, e.g., Sommers v. Colvin, No. 5:14CV163/EMT, 2015 WL
4633516, at *7 n.10 (N.D. Fla. Aug. 3, 2015) ("Plaintiff refers to this physical
therapist as 'Dr. Hussein.' While his credentials indicate he holds a doctor of physical
therapy degree . . . , they do not reflect that this therapist is a medical doctor or other
acceptable medical source."); Adesina v. Astrue, No. 12-CV-3184 WFK, 2014 WL
5380938, at *5 (E.D.N.Y. Oct. 22, 2014) ("Plaintiff's treating source for her
musculoskeletal impairments was not a medical doctor, but a Doctor of Physical
Therapy . . . .").
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subjective complaints rather than on objective medical evidence." See Kirby v. Astrue,
500 F.3d 705, 709 (8th Cir. 2007) (emphasis added) (citation omitted).
3. Dr. Isaac
Additionally, Michel contends that the ALJ should have included in the RFC
the "limitations indicated by Dr. Isaac." Michel identifies these "limitations" as (1)
"[l]ingering and spreading pain through out body joints, increasing with activity"; (2)
"[f]atigue which might be related to medication"; (3) "[n]ot sleeping well after
removal of Trazadone"; (4) "[t]rembling in hands"; (5) "[k]nees aching, not sleeping
well at night, tired all over[,] generalized tenderness involving proximal and distal
musculature"; and (6) Dr. Isaac's observation that "[t]oday is not a good day for
patient." As the Commissioner points out, Dr. Isaac never provided an opinion as to
Michel's functional limitations; instead, he noted that it was "up to [Michel] whether
she wants to get better or not." Michel's listing of the purported "limitations" that Dr.
Isaac identified is actually a summary of the symptoms that Dr. Isaac identified.
4. Dr. Gibson
Michel alleges that the ALJ erroneously rejected the opinion of Dr. Gibson,
who performed a consultative psychological evaluation of Michel. Dr. Gibson focused
on Michel's attention, concentration, and pace limitations. According to Michel, the
ALJ should have incorporated "something about 'attention, concentration and pace'
into the RFC finding" based on Dr. Gibson's opinion.
As the district court found, "[t]he ALJ . . . thoroughly addressed the consultative
psychological examination of Michel performed by Dr. Gibson." (Footnote omitted.)
The ALJ afforded Dr. Gibson's opinion "little weight" because "while [Michel]
continually reported problems with concentration, none of her treating medical
sources found any difficulties with concentration on examination (Exhibit 5F; 8F)."
In support of the ALJ's finding of an inconsistency between Dr. Gibson's opinion and
Michel's other "treating medical sources," the ALJ cited Exhibits 5F and 8F, which are
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Michel's medical records from Amundsen and Dr. Odefey. The ALJ's "finding of
inconsistency with other evidence alone is sufficient" for the ALJ to afford little
weight to Dr. Gibson's opinion as to Michel's ability to concentrate. See Goff, 421 F.3d
at 790–91.
5. Conclusion
We conclude that the ALJ properly considered and addressed the opinion
evidence provided by Dr. Viner, Blankespoor, Dr. Isaac, and Dr. Gibson. We also find
that the ALJ considered the medical evidence as a whole and made a proper RFC
determination based on a fully and fairly developed record. As a result, we reject
Michel's argument that the ALJ's RFC assessment is flawed and not supported by
substantial evidence.
B. Impairments
Michel argues that the ALJ erred in evaluating her impairment of chronic
fatigue syndrome and fibromyalgia.
Michel suggests that her impairments are per se disabling. "We have previously
recognized that fibromyalgia is a chronic condition which is difficult to diagnose and
may be disabling . . . ." Pirtle v. Astrue, 479 F.3d 931, 935 (8th Cir. 2007) (citing
Garza v. Barnhart, 397 F.3d 1087, 1089 (8th Cir. 2005) (per curiam)). We have never
held that conditions such as fibromyalgia and chronic fatigue syndrome are per se
disabling; "not every diagnosis of fibromyalgia warrants a finding that a claimant is
disabled." Perkins, 648 F.3d at 900. "'While pain may be disabling if it precludes a
claimant from engaging in any form of substantial gainful activity, the mere fact that
working may cause pain or discomfort does not mandate a finding of disability.'" Id.(quoting Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996)).
In the present case, "the ALJ properly found [Michel's] fibromyalgia [and
chronic fatigue syndrome] to be . . . severe impairment[s] and took th[ose]
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impairment[s] into account when determining [Michel's] RFC." See Pirtle, 479 F.3d
at 935. We therefore find no err in the ALJ's consideration of Michel's impairments.
C. Hypothetical Question to VE
Finally, Michel argues that the ALJ's hypothetical question to the VE was
incomplete because it failed to properly account for all of her impairments. Michel
also argues that the ALJ's hypothetical was incomplete for failing to include all of her
functional limitations. An ALJ's hypothetical question to a VE "is sufficient if it sets
forth impairments supported by substantial evidence in the record and accepted as
true." Perkins, 648 F.3d at 901–02 (quotations and citations omitted). While "[t]he
hypothetical question must capture the concrete consequences of the claimant's
deficiencies," it need not include "any alleged impairments that [the ALJ] has properly
rejected as untrue or unsubstantiated." Id. (quotation and citation omitted).
Here, as discussed supra, the ALJ's RFC was based on substantial evidence and took
into account those impairments which were substantially supported by the record as
a whole.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
MELLOY, Circuit Judge, dissenting.
I respectfully dissent. The ALJ did not provide good reasons for discounting
the opinions of Michel’s treating physician, Dr. Viner. Dr. Viner was Michel’s
primary care physician and saw Michel every 4 to 6 weeks for the past 10 years. Dr.
Viner diagnosed Michel with disabling chronic fatigue and fibromyalgia. I would
remand to the district court with directions to remand to the ALJ to reconsider
Michel’s application for disability insurance benefits after Dr. Viner’s opinion is
afforded proper weight.
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We are obligated to give “controlling weight” to the opinion of a treating
physician, like Dr. Viner, “if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence.” Gieseke v. Colvin, 770 F.3d 1186, 1188 (8th Cir. 2014) (quoting House
v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007)); see also 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). The majority emphasizes the exception to this rule that “a treating
source does not receive controlling weight if the source’s opinions are inconsistent,
or inconsistent with other substantial evidence in the record.” Blackburn v. Colvin,
761 F.3d 853, 860 (8th Cir. 2014) (citations omitted). In my view, our court too often
broadly interprets this exception instead of giving proper deference to the treating
physician’s opinions.
In this case, the ALJ accorded “little weight” to Dr. Viner’s opinions, in part,
on the grounds that his opinions were “both internally inconsistent within [Dr. Viner’s
Residual Functional Capacity (RFC) Report] and externally inconsistent with [Dr.
Viner’s] prior treatment records.” I find the ALJ relied on superficial and imagined
inconsistencies to discount Dr. Viner’s opinions.
First, according to the ALJ, Dr. Viner’s opinions are inconsistent because his
RFC form indicates Michel suffered pain in her feet, but his medical records do not.
That is wrong. Dr. Viner’s RFC form indicates that Michel experienced “bilateral”
pain next to the category “[k]nees/ankles/feet.” Dr. Viner did not specifically indicate
that Michel had pain in her feet on his RFC form. While Dr. Viner’s medical records
do not refer to pain symptoms in Michel’s feet, the record provides ample support that
Michel suffered pain in her knees and ankles. Thus, the ALJ erred in finding an
inconsistency based on the lack of a reference to pain in Michel’s feet in the record.
Second, according to the ALJ, Dr. Viner’s opinions are inconsistent because
Dr. Viner reported that Michel was “unable to work”; however, Dr. Viner “failed to
fill out any functional limitations resulting from her diagnosed impairments” on Dr.
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Viner’s RFC form. I disagree. Although Michel admits Dr. Viner’s RFC form
provides little information regarding her physical residual functional capacity, Dr.
Viner’s RFC form demonstrates Michel’s physical limitations. Dr. Viner noted, for
example, that during a typical eight-hour workday, Michel would “frequently”
experience pain or other symptoms severe enough to interfere with her attention and
concentration needed to perform even simple work tasks. Dr. Viner noted Michel has
“daily and disabling” pain in her cervical spine, thoracic spine, shoulders, arms,
hands/fingers, hips, legs, and knees/ankles/feet. Dr. Viner concluded that Michel is
“incapable of even ‘low stress’ jobs,” and he opined she has “prolonged disability.”
Dr. Viner’s medical records also include objective evidence; observations regarding
Michel’s asthenic appearance; and Michel’s subjective complaints as to her fatigue,
general aching, inability to walk long distances, and limited activities, all of which
describe Michel’s impaired physical residual functional capacity.
Third, according to the majority, the “most glaring inconsistency” noted by the
ALJ was Dr. Viner’s statement that Michel’s symptoms and limitations on the RFC
form “applied to dates for the last ‘10 years.’” The ALJ found Dr. Viner’s statement
to be inconsistent with Michel’s work history because Michel worked “until October
2009.” I cannot agree. As the ALJ recognized, Michel’s symptoms of fatigue date
back to the early 1990s and were exacerbated in October of 2009. Therefore, Dr.
Viner’s indication on his RFC form that Michel’s symptoms and limitations date back
“10 years” is not inconsistent with the onset of Michel’s disability in October of 2009.
Even if Michel continued to work until her onset date of disability of October 22,
2009, in spite of her symptoms and limitations, there may have been other driving
factors that permitted or required her continued employment. See Kelley v. Callahan,
133 F.3d 583, 588 (8th Cir. 1998) (indicating that one’s ability to work may be based
on a lenient employer, a higher tolerance for pain, or no other means of support).
Lastly, according to the majority, the ALJ noted another inconsistency by
asserting Dr. Viner’s RFC report, but not his treatment notes, says Michel suffered
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“‘frequent’ problems with attention and concentration.” That is not what Dr. Viner’s
report says. Rather, it indicates: Michel’s experience of pain or other symptoms is
severe enough to frequently interfere with attention and concentration needed to
perform even simple work tasks during a typical workday. Dr. Viner’s treatment
history and his RFC form focus on Michel’s physical ailments. The ALJ misconstrues
Dr. Viner’s report to suggest Dr. Viner was opining as to Michel’s mental capabilities.
Yet again, the ALJ imagined an inconsistency to discredit Dr. Viner’s opinions.8
Dr. Viner’s opinions, based on a ten-year treatment history, were “well-
supported by medically acceptable clinical and laboratory diagnostic techniques.”
Gieseke, 770 F.3d at 1188 (quoting House, 500 F.3d at 744). Further, physical
therapist Dr. Mark Blankespoor administered an objective physical residual functional
capacity test, finding that “[w]hile the client’s capabilities are in the sedentary
category, she would have significant difficulty with performing work tasks on a full-
time basis.” Dr. Blankespoor continued: “She would not be able to safely perform
lifting, carrying, pushing, pulling, gripping, pinching, sitting, standing, walking,
dexterity or positional tasks on a continuous, day after day basis.” Dr. Viner did not
express an opinion regarding Michel’s physical residual functional capacity until after
he reviewed Dr. Blankespoor’s objective report. Thus, Dr. Viner’s opinions deserve
more credence because his opinions are supported not only by his own medical
records but also by Dr. Blankespoor’s report.
In conclusion, the ALJ was hard pressed to find “good reasons” for discrediting
Dr. Viner’s opinions. See Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008)
8
It should also be noted the mental health records that the ALJ indicates are
inconsistent with Dr. Viner’s opinions are not as inconsistent as suggested. While the
notes generally indicate: “Concentration: Good, Able to comment on events,” they
then usually go on to indicate: “Concentration: Unchanged, : good at times, memory
still not what it should be . . .” However, other notes also indicate that on some visits
concentration is “[i]mproved” while other occasions it is “[w]orse.”
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(“Whether the ALJ gives great or small weight to the opinions of treating physicians,
the ALJ must give good reasons for giving the opinions that weight.”); see also 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The Social Security Administration and our
court have an obligation to give due deference to the opinions of treating physicians
and not ignore those opinions where only superficial or imagined inconsistencies
exist. See Vossen v. Astrue, 612 F.3d 1011, 1017 (8th Cir. 2010) (“The opinion of
a treating physician is accorded special deference under the social security
regulations.” (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000))). For the
reasons discussed above, I would reverse and remand to the district court with
instructions to remand to the ALJ for reconsideration of the weight given to Dr.
Viner’s opinions.
______________________________
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