Robert Baker v. Carolyn W. Colvin , 620 F. App'x 550 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3191
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Robert Ray Baker
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commssioner of Social Security
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 14, 2015
Filed: July 22, 2015
[Unpublished]
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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Robert Baker appeals the district court's1 order upholding the Social Security
Commissioner's decision to deny his applications for disability insurance benefits and
supplemental security income benefits. Baker argues that the administrative law judge
(ALJ) erred by not considering a disability decision by a government agency, by not
giving sufficient weight to the opinions of treating medical sources, and by not
considering Baker's tinnitus and obesity. We affirm.
I. Background
A. Baker's Medical History
Baker is a 58-year-old male suffering primarily from back pain. Baker served
in the military during the 1970s and has worked consistently over the years in
sedentary, light, and heavy work.
Baker injured his back on the job on October 30, 2008, lifting heavy flooring
panels. Baker visited a medical center on October 31, 2008, to address the back pain.
An examination showed that Baker performed negatively on his straight-leg raising
test but otherwise had normal gait, normal reflexes, and a full range of motion in his
back. The examining physician put Baker on moderate activity restrictions, and Baker
underwent a course of physical therapy at the Veterans Administration Medical
Center (VAMC). When Baker completed physical therapy several months later, the
discharge notes stated that Baker "continues with some pain" but that it was
manageable with pain medication and traction stretches.
On November 14, 2008, Baker underwent an x-ray on his back. The x-ray
revealed that Baker had mild degenerative disc disease at L2-L3 and L3-L4 with no
evidence of acute injury.
1
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
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On December 16, 2008, Dale Davis, a Physician's Assistant, examined Baker
and noted several uncontrolled conditions. Among other things, Davis recorded that
Baker had uncontrolled obesity, uncontrolled degenerative disc disease, and
controlled "[h]earing [l]oss w/ intermittent tinnitus." In a follow-up exam on March
11, 2009, Davis noted that Baker's "[s]pine shows no vertebral tenderness."
On April 29, 2009, Dr. Glen Knosp, M.D., a state physician, examined Baker
and completed a physical residual functional capacity (RFC) assessment. Baker
reported that he had "pain all the time [and] cannot twist, bend or stand without pain."
Baker also stated that "he can only walk for 10 minutes, stand for 10 minutes and sit
for 15–30 minutes" because of the pain in his lower back. After reviewing Baker's
medical history and conducting a physical examination, Dr. Knosp considered Baker
to be only partially credible and concluded that the examination did "not support the
degree of limitations that [Baker] alleges in terms of walking, standing, [and] sitting."
Dr. Knosp instead concluded that Baker could stand or walk for six hours each day
and could sit for six hours each day. Dr. Knosp also opined that Baker could
occasionally lift 20 lbs. and could frequently lift 10 lbs. Finally, he opined that Baker
could frequently climb ramps and stairs, balance, kneel, and crawl and could
occasionally stoop and crouch. On July 10, 2009, Dr. Jerry Reed, M.D., also a state
physician, reviewed Dr. Knosp's medical opinion and agreed with its conclusions.
On July 9, 2009, Baker underwent an MRI on his spine. The MRI revealed a
"mild diffuse disc bulge" at L5-S1 and "moderate facet degenerative changes" at L4-
L5 and L5-S1. While the radiologist concluded that Baker had "[m]ild multilevel
[degenerative disc disease]," he also found that Baker's "[v]ertebral body height and
alignment are normal without subluxation," that there were "[n]o destructive lesions,"
and that "[p]araspinal soft tissues [were] normal."
On September 9, 2009, Davis completed a RFC questionnaire. Davis stated that
Baker's diagnoses included, among other things, "degenerative disc disease [in the]
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LS spine, myofascial pain [in the] mid back, meralgia parasthetela [in the] right thigh
. . . obesity, [and] hearing loss w/ intermittent tinnitus." Davis reported that Baker
could only sit for 30 minutes, stand for 20 minutes, would have to get up and walk
every 15 minutes, and could only sit and stand for a total of six hours each day. Davis
also reported that Baker could occasionally twist, stoop, crouch, and climb stairs; that
he could rarely climb ladders; and that he could occasionally lift 20 lbs.
On November 12, 2010, Baker underwent an audiology exam to test his hearing
loss. The exam revealed that Baker had high-frequency hearing loss and required
hearing aids. This hearing loss was confirmed in further testing on December 9, 2010.
On January 26, 2011, Dr. Isaac Witkowski, M.D., examined Baker. Dr.
Witkowski noted Baker's hearing loss and complaints of tinnitus. Regarding Baker's
back, Dr. Witkowski found that Baker's gait was abnormal and that Baker appeared
to have "moderate back pains." Dr. Witkowski's report specifically states that there
was "[n]o testing today. Testing was gathered throughout a review of CPRS."2 Dr.
Witkowski's report also stated that in regard to Baker's disabilities, "[a]ll disabilities
are listed as above. No testing was performed." Dr. Witkowski ultimately diagnosed
Baker with, among other things, "[m]yofascial [p]ain [s]yndromes," "[d]egeneration
of intervertebral discs," and [s]ensorineural [h]earing [l]oss." According to Dr.
Witkowski, this affected Baker's mobility, his ability to lift and carry, and his ability
to reach. He further opined that Baker "can sit for 30 minutes and stand for 15
minutes and walk about one block." Dr. Witkowski concluded that Baker's back
condition was "disabling" because of frequent pain episodes.
On March 2, 2011, the Department for Veterans Affairs (VA) issued a decision
that Baker was partially disabled on account of his mild tinnitus, bilateral hearing
2
"CPRS" stands for a "computerized patient record system." See Bd. Vet. App.
0822815 (2008).
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loss, and various other medical conditions. This decision relied on medical evidence
from "Omaha VAMC Records from February 16, 2005 through January 27, 2011,"
as well as Dr. Witkowski's "VA examination dated January 26, 2011." First, the
decision assigned Baker a ten percent disability rating for his tinnitus because "it is
at least as likely as not that the tinnitus is related to the claimed military noise
exposure." This finding corroborated Baker's later testimony before the ALJ that he
developed tinnitus because of all the noise that he experienced as an airplane
mechanic for the marines. Next, Baker's claim related to bilateral hearing loss was
also granted. In regard to his other medical conditions, the decision found that Baker
was disabled "due to the following disability(ies): right foot condition, chronic
mechanical low back strain with multilevel degenerative disc disease, diabetes
mellitus type II, myofascial pain syndromes, hypertension NOS, [e]rectile
dysfunction, myocardial infarction with dyspnea on exertion, dermatitis, meralgia
paresthetica. These disabilities combine to 70% disabling."
On March 28, 2011, Dr. Meryl Severson, II, M.D., a state physician, examined
Baker. Dr. Severson diagnosed Baker with degenerative disc disease at L5-S1, mild
degenerative facets changes in the lumbar spine, and chronic back pain. Dr. Severson
also noted that Baker could perform most daily activities with little to no difficulty.
Dr. Severson also opined that Baker could sit and stand for 25 minutes at a time and
could walk for 15 minute intervals. In total, Dr. Severson concluded that Baker could
sit for 175 minutes, stand for 175 minutes, and walk for 60 minutes during a workday.
According to Dr. Severson, Baker could lift up to 10 lbs. frequently and could lift up
to 20 lbs. occasionally. Finally, Baker could balance, stoop, kneel, crouch, and crawl
occasionally; climb stairs and ramps frequently; but could not climb ladders or
scaffolds.
On July 14, 2011, Dr. James Bane, M.D., another state physician, examined
Baker and completed a physical RFC assessment. Along with the physical
examination, Dr. Bane also based his opinion upon a review of Baker's medical
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records from 2010–11. Dr. Bane opined that Baker could occasionally lift 20 lbs. and
could frequently lift 10 lbs. Dr. Bane also found that Baker could stand or walk for
about six hours a day and could also sit for about six hours a day. Dr. Bane further
found that Baker could occasionally climb ramps and ladders, balance, stoop, kneel,
crouch, and crawl.
In 2012, Baker continued to take pain medication and see physicians. On
March 9, 2012, Dr. Christine Mitchell, M.D., examined Baker. Baker told her that his
chronic pain was stable but that he continued to use pain medication and muscle
relaxers. Later in the year, on September 19, 2012, Baker again enrolled in physical
therapy for his back pain. On September 27, 2012, Baker commented that his back
pain was temporarily relieved after heat therapy and back traction, but that it soon
returned to a high pain level.
B. Procedural History
Baker filed for disability insurance benefits and supplemental security income
on March 20, 2009, and alleged a disability onset date of October 30, 2008. His
request for benefits was initially denied; upon reconsideration, an ALJ also denied
Baker's claim. The ALJ found that Baker was not disabled because he could perform
past relevant sedentary work. This finding was based in part on Dr. Severson's
medical opinion that Baker could sit for 175 minutes, stand for 175 minutes, and walk
for 60 minutes during a workday.
On September 21, 2011, the Social Security Appeals Council remanded Baker's
claim back to the ALJ. According to the Appeals Council, the ALJ's order was
ambiguous partially because Dr. Severson's opinion on Baker's ability to stand, sit,
and walk did not account for a full eight-hour workday.
On remand and after several additional administrative hearings, the ALJ once
again found that Baker was not disabled because he could perform past relevant
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sedentary work. The ALJ followed the familiar five-step process to determine
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); see also Hacker v. Barnhart,
459 F.3d 934, 936 (8th Cir. 2006). At Step Two, the ALJ found that Baker "has the
following severe impairments: Low back strain; mild degenerative disc disease at
L2-3 and L3-4; history of coronary artery disease; diabetes mellitus; obesity; and
hypertension." (Emphasis added.) The ALJ also noted the severity of Baker's obesity
by noting that in 2012, Baker "testified that he was 5 feet, 7½ inches tall and weighed
250 lbs. The record fails to establish that [Baker] has gained or lost substantial weight
since then." At Step Three, the ALJ also found that Baker's obesity did not meet the
severity of a listed impairment under the relevant regulations.
Pursuant to the Appeals Council's remand, the ALJ further developed the
record by seeking clarification from Dr. Severson. Dr. Severson subsequently
revisited her medical opinion and amended it to state that Baker could sit for 205
minutes, stand for 205 minutes, and walk for 60 minutes during an eight-hour
workday. The ALJ gave great weight to Dr. Severson's opinion because she was an
examining medical source and her opinion was congruous with other medical
evidence in the record.
Relying on Dr. Severson's amended medical opinion, the ALJ found that Baker
had the following RFC:
He could lift and carry up to 20 pounds on a frequent basis. He could sit
for 25 minutes at a time for a total of 205 minutes (3 hours, 25 minutes)
in an 8-hour day. He could stand for 25 minutes at a time for a total of
205 minutes (3 hours, 25 minutes) in an 8-hour day. He could walk 1
block at a time, carrying 10 pounds in each hand, for a total of 60
minutes. He could alternate sitting, standing, and walking as needed and
complete an 8-hour workday. During the course of a regular day, he
could have one break of up to 10 minutes in addition to normal break
periods, to go to the bathroom or get a drink.
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In addition to Dr. Severson's medical opinion, the ALJ also gave great weight
to Dr. Knosp's medical opinion. Conversely, the ALJ gave little weight to Dr.
Witkowski's and Davis's opinions. The ALJ gave little weight to Dr. Witkowski's
medical opinion because his conclusions "appear to be restatements of the claimant's
allegations rather than conclusions reached by Dr. Witkowski based on his own
clinical findings." The ALJ gave little weight to Davis's opinion because " Davis is
not an acceptable medical source, and his opinion is not supported by other
substantial medical evidence of record."
At Step Four, the ALJ found that Baker's RFC allowed him to perform past
relevant sedentary work as a wholesale sales representative. Thus, the ALJ concluded
that Baker was not disabled and denied his claim for social security benefits. Baker
unsuccessfully appealed the ALJ's decision to the Appeals Council and then to the
district court.
II. Discussion
On appeal, Baker argues that the ALJ made three errors. First, Baker argues
that the ALJ erred by not giving any consideration to the VA's disability
determination. Second, Baker argues that the ALJ erred by not giving sufficient
weight to the opinions of Dr. Witkowski and Davis. Finally, Baker argues that the
ALJ erred by not finding that Baker's tinnitus was a severe impairment and by not
considering Baker's obesity.
We 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." Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (alterations
in original) (quotation and citation omitted). "Substantial evidence is less than a
preponderance, but enough that a reasonable mind might accept it as adequate to
support a decision." Id. (quotation and citation omitted). "We must consider evidence
that both supports and detracts from the ALJ's decision . . . . If, after reviewing the
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record, the court finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ's findings, the court must
affirm the ALJ's decision." Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011)
(quotations and citations omitted).
A. VA Disability Decision
Baker first argues that the ALJ committed reversible error by failing to
consider or even mention the VA's March 2, 2011 disability decision. Baker argues
that our decision in Morrison v. Apfel controls. 146 F.3d 625 (8th Cir. 1998). In
Morrison, the VA had determined that the claimant was "permanently and totally
disabled." Id. at 628. We held "that the VA finding was important enough to deserve
explicit attention. We agree with other courts that findings of disability by other
federal agencies, even though they are not binding on an ALJ, are entitled to some
weight and must be considered in the ALJ's decision." Id. (citations omitted). In
Morrison, we reversed and remanded the case. Id. at 629.
Since Morrison, we have also considered this issue in Pelkey v. Barnhart, 433
F.3d 575 (8th Cir. 2006). Similar to Morrison, Pelkey dealt with an ALJ's opinion that
did not mention a VA decision that found the claimant to be disabled. Id. at 579. In
Pelkey, however, we found that "the ALJ did not err because he fully considered the
evidence underlying the VA's final conclusion that Pelkey was . . . disabled." Id. In
other words, even though the ALJ did not mention the VA disability determination,
the ALJ addressed and discredited the various medical records upon which the VA
disability determination was ultimately based. Id. at 579–80. We expressly
distinguished Morrison on these grounds. Id.Here, Pelkey controls because the ALJ properly considered and discredited the
underlying medical evidence upon which the VA decision was based. The VA
decision only relied upon a few medical records, including Baker's medical history
and Dr. Witkowski's January 26, 2011 medical opinion. The ALJ's decision
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considered these sources in his decision. The ALJ walked through several of Baker's
medical examinations, physical therapy reports, and other medical findings from x-
rays and MRIs going as far back as the alleged date of onset.
Further, the ALJ considered Dr. Witkowski's medical opinion but gave it little
weight because he found that Dr. Witkowski's opinion was based upon Baker's
subjective complaints as opposed to Dr. Witkowski's clinical findings. Dr.
Witkowski's report specifically states that there was "[n]o testing today. Testing was
gathered throughout a review of CPRS." In regard to Baker's disabilities, Dr.
Witkowski's report stated that "[a]ll disabilities are listed as above. No testing was
performed." Thus, the record supports the ALJ's conclusion that Dr. Witkowski's
opinion was not based upon his own physical examination of Baker, but rather
Baker's own subjective complaints. Accordingly, there appears to be little or no
clinical corroboration of Dr. Witkowski's medical opinion that "[i]t is very likely that
[Baker's] back pains [would] interfere with all types of employment," or Dr.
Witkowski's more specific finding that Baker "can sit for 30 minutes and stand for 15
minutes and walk about one block."
Consequently, the ALJ did not err by discounting the VA decision. The ALJ
satisfied Pelkey by sufficiently considering the underlying medical evidence—Baker's
medical history and Dr. Witkowski's January 26, 2011 opinion— upon which the VA
decision relied.
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B. Examining Medical Sources
Next, Baker argues that the ALJ erred by giving insufficient weight to the
examining medical opinion of Davis,3 and more specifically, his September 9, 2009
RFC questionnaire.
Baker concedes that the opinion of Davis, a Physician's Assistant, cannot be
considered as an "acceptable medical source." See 20 C.F.R. § 404.1513(a); see also
Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir. 2006) (finding that a social worker,
nurse practitioner, and community support service provider could not be considered
as a "treating source" under the social security regulations). Therefore, even if Davis
had a treating relationship with Baker, Davis's opinion is not subject to receiving
"more weight" or "controlling weight" as are medical sources. See 20 C.F.R. §
416.927(c)(2). Regardless, Baker rightfully argues that Davis's opinion can still be
considered by the ALJ as an "other source." Id. § 404.1513(d)(1) (listing physician's
assistants as such a source); see also Lacroix, 465 F.3d at 886–87. Under this
category of "other medical evidence, the ALJ has more discretion and is permitted to
consider any inconsistencies found within the record." Raney v. Barnhart, 396 F.3d
1007, 1010 (8th Cir. 2005) (quotation and citation omitted).
Substantial evidence supports the ALJ's discretion to give Davis's opinion little
weight because, in the ALJ's words, Davis's "opinion is not supported by other
substantial medical evidence of record." Sources in the record, even those of treating
physicians, are entitled to less weight when "inconsistent or contrary to the medical
evidence as a whole." Martise v. Astrue, 641 F.3d 909, 925 (8th Cir. 2011) (quotation
and citation omitted). Davis's opinion that Baker could only sit for 30 minutes, stand
3
As has been previously indicated, Baker challenges the weight the ALJ gave
to both Dr. Witkowski's and Davis's opinions. Given our disposition of Dr.
Witkowski's opinion in section II.A, we only address the weight given to Davis's
opinion in this section.
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for 20 minutes, would have to get up and walk every 15 minutes, and could only sit
and stand for a total of six hours each day is contradicted by the medical opinions of
Drs. Knosp, Reed, Severson, and Bane. Dr. Knosp opined Baker to be only partially
credible and concluded he could stand or walk for six hours and could sit for six
hours in a workday. Dr. Reed confirmed this finding after a review of Dr. Knosp's
opinion. Dr. Bane also opined that Baker could walk for about six hours and sit for
about six hours in a workday. Dr. Severson opined that Baker could stand for 205
minutes, sit for 205 minutes, and walk for 60 minutes in a workday. Thus, we find
substantial evidence supports the ALJ's exercise of discretion to give Davis's opinion
little weight.
C. Baker's Tinnitus and Obesity
Finally, Baker argues that the ALJ erred by not adequately accounting for his
tinnitus and obesity. First, Baker argues that the ALJ should have categorized his
tinnitus as a severe impairment at Step Two of the disability analysis. He highlights
his audiology exams in late 2010 that revealed he suffered from tinnitus and hearing
loss in his right ear. The VA disability decision assigned a ten percent disabling effect
on Baker as a result. Thus, Baker contends that by not even mentioning his tinnitus,
the ALJ committed reversible error.
Baker's argument is unavailing. At Step Two, a claimant has the burden of
providing evidence of functional limitations in support of his contention that he is
disabled. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). "An impairment is not
severe if it amounts only to a slight abnormality that would not significantly limit the
claimant's physical or mental ability to do basic work activities." Id. (citing Bowen
v. Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). "If the impairment
would have no more than a minimal effect on the claimant's ability to work, then it
does not satisfy the requirement of step two." Id. (citing Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007)). Baker testified that he believed he developed tinnitus
while serving in the Marine Corps in the 1970s as an airplane mechanic; further, the
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VA's disability decision found "that it is at least as likely as not that the tinnitus is
related to the claimed military noise exposure." Thus, by Baker's own admission, he
has had a steady work history for more than 30 years, all while dealing with his
tinnitus. Thus, Baker did not meet his burden at Step Two because he failed to show
that his tinnitus significantly limited or had more than a minimal effect on his ability
to work.
Baker also argues that the ALJ erred by not considering his obesity and its
effects on Baker's ability to perform physical activity within the work environment.
The ALJ's decision indicates otherwise. "We have held that when an ALJ references
the claimant's obesity during the claim evaluation process, such review may be
sufficient to avoid reversal." Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009)
(citing Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1153 (8th Cir. 2004)). In
Heino, we upheld an ALJ's decision in the face of a similar challenge because the
ALJ considered the claimant's obesity by mentioning the claimant's height and
weight, stating the heaviest weight the claimant had ever been, and considering
obesity in his hypothetical to the vocational expert. Id. In the present case, the ALJ
also sufficiently considered Baker's obesity in numerous references. The ALJ found
that Baker's obesity was a severe impairment under Step Two and noted Baker's
height and weight. Also, the ALJ found that Baker's obesity did not qualify as a listed
impairment under Step Three. Before reaching Step Four, the ALJ also accounted for
Baker's attempts at weight loss throughout his medical history. "Because the ALJ
specifically took [Baker]'s obesity into account in his evaluation, we will not reverse
that decision." Id. at 881–82.
III. Conclusion
For the reasons stated herein, we affirm the Commissioner's denial of benefits.
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