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Case: 4:12-cv-00247-TIA Doc. #: 23 Filed: 09/20/13 Page: 1 of 42 PageID #: 561

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CHARLES GEORGE LEWIS, JR.,

Plaintiff,

v.

CAROLYN W. COLVIN,1
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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No. 4:12CV247 TIA


MEMORANDUM AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

This cause is on appeal from an adverse ruling of the Social Security Administration. The

suit involves Applications for Disability Insurance Benefits under Title II of the Social Security

Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief

in Support of his Complaint, and the Commissioner has filed a Brief in Support of her Answer.

The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I.

Procedural History

On April 1, 2009, Claimant Charles George Lewis, Jr. filed Applications for Disability

Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 116-18) and for

Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42

1 Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is
therefore substituted for Michael J. Astrue as the Defendant in this action.

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U.S.C. §§ 1381, et. seq. (Tr. 119-21).2 Claimant states that his disability began on May 13,

2009,3 as a result of hand injury, back pain, right leg pain, anxiety, and bipolar disorder. (Tr. 67).

On initial consideration, the Social Security Administration denied Claimant's claims for benefits.

(Tr. 67-72). Claimant requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 74-

75). On September 2, 2010, a hearing was held before an ALJ. (Tr. 29-63). Claimant testified

and was represented by counsel. (Id.). Medical Expert Dr. Mark Oberlander and Vocational

Expert Jim Breen also testified at the hearing. (Tr. 42-52, 52-61, 112, 113). Thereafter, on

December 9, 2010, the ALJ issued a decision denying Claimant’s claims for benefits. (Tr. 10-24).

After considering the letter from counsel, the Appeals Council on December 7, 2011 found no

basis for changing the ALJ’s decision and denied Claimant’s request for review of the ALJ’s

decision. (Tr. 1-5, 8-9, 196-97). The ALJ's determination thus stands as the final decision of the

Commissioner. 42 U.S.C. § 405(g).

II.

Evidence Before the ALJ

A. Hearing on September 2, 2010

1. Claimant's Testimony

At the hearing on September 2, 2010, Claimant testified in response to questions posed

by the ALJ and counsel. (Tr. 33-42). Claimant lives with his oldest daughter and his ex-wife.

(Tr. 35). He served as a structure specialist in the military. (Tr. 42). Claimant has a non-driver’s

license with an expiration date of August 27, 2014. (Tr. 49-50).

2"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(Docket No. 11/filed April 17, 2012).

3Although Claimant originally alleged an onset date of September 20, 2008 in his applications,
he amended his onset date to May 13, 2009. (Tr. 62, 114, 116, 119).

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Claimant testified that he has a history of taking street drugs, but that he last used street

drugs five years earlier when he had two hits off a marijuana cigarette. (Tr. 33). Claimant

testified that he last used street drugs in 2007. (Tr. 44).

Claimant testified that he could sit for fifteen to twenty minutes, stand for approximately

thirty minutes, and walk for a quarter mile. (Tr. 35). He can bend at the knees and bend half way

over. He cannot get down on his hands and knees. Claimant testified that he can lift a half of

gallon of milk with his right hand and less with his left hand. He can grip his left hand into a fist.

(Tr. 35).

Claimant testified that he experiences shortness of breath after walking a quarter of a mile.

(Tr. 37). He has loss of sensation in four fingers on his left hand. (Tr. 38). He can make a fist

with his left hand but he has no repetitive grip or strength. (Tr. 38). He cannot pick up coins,

paperclips, or anything with weight with his left hand. (Tr.39). Claimant testified that he has

been able to pay attention and concentrate at the hearing. (Tr. 39).

Claimant testified that his psychiatrist and primary care physician advised him not to drive

because of his medications. (Tr. 36). He does not have a driver’s license. (Tr. 36). Claimant

testified that his medications “leaves me to where I’m having to be lead around.” (Tr. 41).

Claimant testified that he experiences symptoms of depression such as moodiness and crying three

to four days a week. (Tr. 40). Claimant testified that his doctors do not want him to drive

because of his medications. (Tr. 40). His anxiety attacks cause increased blood pressure, and he

freaks out on people. (Tr. 41).

Claimant last received treatment in an emergency room in 2008 for an anxiety attack. (Tr.

50).

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In 2001, Claimant worked at Patriot Express as a part-time truck driver and a part-time

warehouse worker. (Tr. 52). He drove a twenty-five foot box truck. (Tr. 52). Claimant lifted

between ten to fifty pounds. (Tr. 53). Claimant testified that he last worked on September 20,

2008. (Tr. 33). Claimant testified that he stopped working, because the company closed. (Tr.

47).

2. Testimony of Medical Expert

Medical Expert Dr. Mark Oberlander, a clinical psychologist, chronicled Claimant’s

impairments in the order of their severity. (Tr. 45). Based on his review of the medical evidence,

Dr. Oberlander testified Claimant has symptomology under four Social Security Listings, affective

disorder, anxiety disorder formulated as panic disorder, personality disorder, and substance use

and abuse. (Tr. 45-46). Dr. Oberlander noted Claimant has a history of involvement with the

Department of Corrections and being charged with substance possession. (Tr. 46). During

consultative examination on July 23, 2009, Claimant reported a history of heavy use of cannabis

and being clean for three months. Dr. Oberlander noted Dr. Raza treatment notes showing the

opinion Claimant’s cannabis abuse is continuing, and reporting moving to St. Louis two months

earlier. Dr. Oberlander opined none of Claimant’s impairments either individually or collectively

meet or equal a Listing. (Tr. 46).

Dr. Oberlander opined Claimant’s affective disorder is largely due to general medical

conditions. (Tr. 47). During the period in question, September 2008 to the present, Dr.

Oberlander opined the objective medical evidence shows Claimant has retained the capacity for

simple, repetitive work activity, but he would not be capable of working in a setting which

required understanding, remembering and executing complex work activity. (Tr. 48). Dr.

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Oberlander further placed a limitation on Claimant’s capacity to interact appropriately with the

public, coworkers, and supervisors. His work setting would require working in a setting which is

characterized by less than frequent contact with the public, coworkers, and supervisors. Dr.

Oberlander found Claimant to be able to formulate plans for himself and adapting to changes in

the work situation. (Tr. 48). Dr. Oberlander further found Claimant’s functional capacity to

engage in appropriate activities of daily living to be moderately impaired; his capacity to interact

appropriately in social element of a work setting to be markedly impaired; and his capacity to

understand, remember, act with persistence in simple, repetitive work activities to be moderately

impaired. (Tr. 49). There is no evidence showing the existence of any episodes of

decompensation or deterioration. Although the record has vague references to some psychiatric

treatment in the emergency room for anxiety symptomology, Dr. Oberlander noted there was no

objective evidence on the record. (Tr. 49).

Dr. Oberlander agreed with counsel that it is helpful to determine mental limitations in

terms of work activities by being with the patient and asking the patient questions directly. (Tr.

51).

3. Testimony of Vocational Expert

Vocational Expert testified in response to the ALJ’s questions. (Tr. 55-62). Mr. Jim

Breen classified Claimant’s work within the last fifteen years as a truck driver, a semi-skilled job,

medium both as performed and pursuant to the DOT. (Tr. 54). The warehouse worker job was

an unskilled job, medium pursuant to the DOT and heavy as performed. The ALJ asked him to

consider Claimant’s age, forty-six, his tenth grade education, and his ability to read, write, and

understand English. (Tr. 54).

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The ALJ asked Mr. Breen to assume that

the person is able to lift and carry occasionally ten pounds, frequently ten pounds;
sit six hours out of an eight hour day; stand and walk four hours out of an eight
hour day; use of hand in arm controls, secondary to left hand problems and a
surgical correction of problems with the left hand; the person can use hand and
arm controls frequently; foot and leg controls repetitively; feeling, left hand, left
fingers, the left four fingers has loss of sensation, nevertheless the person can
maintain a grip and can grasp the hand into a fist; the fingering, the feeling in the
left hand, left fingers then is absent without motor interruption and ability to grasp
into a fist. The right hand is repetitively feeling. Fingering, occasional with the left
hand; repetitive with the right hand; handling objects with both hands, frequent;
reaching overhead and out to the side, either side, repetitive; climbing ladders,
ropes or scaffolds, never; ramps or stair, frequent; balancing, frequently; stooping,
frequently; kneeling, frequently; crouching and crawling, only occasional. Mental
impairments are such, secondary to anxiety disorder and other documented
treatment records. The person is able to understand, remember and carry out
simple, repetitive tasks with the above limitations, physical limitations playing out
on the tasks he could perform. Maintain attention and concentration for short
periods of time. Simple, unskilled tasks. Can interact with the general public less
than frequent. I would put that he’s not completely excluded from the general
public, including discussions, problem solving, documenting any kind of
information would be excluded. So it would be only a transitory, intermittent, less
than frequent general public contact. With supervisors and coworkers, as needed,
but he’s better working with things rather than people. The person is able to
adjust to changes in the work setting on an occasional basis. The environmental
limitations are that the, the person should be excluded from commercial truck
driving. And that would include operation of any other kind of mechanized trucks
or vehicles in the workplace. With this hypothetical could this person do the past
relevant work?


(Tr. 55-56). Mr. Breen responded that the hypothetical worker would be able to do any past

relevant work. (Tr. 56).

Mr. Breen opined that such an individual could perform other jobs in the regional,

national, and local economy such as unskilled, sedentary occupations such as an eyeglass

assembler with 800 jobs in the St. Louis area and 1, 800 in Missouri; printed circuit board

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assembler, 4,000 jobs in the St. Louis area and 9,500 in Missouri; surveillance system monitor,

140 jobs in St. Louis and 1,500 in Missouri. (Tr. 56).

Next, the ALJ asked Mr. Breen to assume the additional information,
secondary to a mental disorder the person would be off task ten percent of the time
with five percent reduction in productivity and this is secondary to a mental
disorder for which he is being treated, which would take him off task. What effect
would this have on these jobs?

(Tr. 57). Mr. Breen responded that while the DOT does not discuss being off task, based on his

fifteen years in placing people, Mr. Breen believed being off task about ten to twelve percent of

the time to be the upper limit of what employers will typically tolerate. Thus, being off task ten

percent of the time would not have an effect of the jobs he discussed or the number of available

jobs. (Tr. 57).

Counsel asked Mr. Breen to assume the individual has no ability to deal with work stress

on a sustained basis; and the ability to function independently, behave in an emotionally stable

manner, and to demonstrate reliability to be poor to none. (Tr. 58). Mr. Breen opined such

individual would not be employable. (Tr. 59). When asked, Mr. Breen testified that the eyeglass

assembler and the printer circuit board assembly jobs would require bilateral hand use on a

frequent basis. (Tr. 59). Counsel asked if the individual was limited to occasional left hand

fingering he would be precluded from performing these jobs. Mr. Breen agreed. (Tr. 59).

The ALJ asked Mr. Breen to confirm that if the individual has occasional use of the hands

would eliminate the production assembly jobs such as the eyeglass assembly and the circuit board

assembly. (Tr. 59). Mr. Breen noted only the surveillance monitor job would not be affected.

(Tr. 59). Mr. Breen testified that he placed one person in the last year as a surveillance system

monitor. (Tr. 60).

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4. Forms Completed by Claimant

In the Function Report Adult - Third Party, Vicky Phillips, Claimant’s ex-wife, reported

that Claimant helps watch his granddaughter. (Tr. 166). She listed doing the laundry, cleaning

the table after meals, and loading the dishwasher as household chores Claimant can do. (Tr. 167).

She listed watching television, fishing and playing with grandchildren as his hobbies. (Tr. 169).

III. Medical Records

On May 11, 2005, Dr. James Stuckmeyer completed an independent medical evaluation of

Claimant on referral by counsel. (Tr. 198). Claimant reported being employed with Patriot

Incorporated for five years and being injured in September 2004 while performing occupational

duties. His hand was crushed between a truck and his person while he was unloading freight.

(Tr. 198). After the accident, the large flap laceration of the left hand was suture repaired. (Tr.

199). After consultation, Dr. Petit placed Claimant on a modified duty status with restricted use

of the left hand and no utilization of power towers or impact tools and recommended consultation

with a hand specialist. At the consultation, Claimant reported having stiffness and poor function.

Dr. Divelbiss found Claimant to have a left hand laceration and recommended he return to light

duty status with no use of the left hand and an aggressive therapeutic program. In a follow-up

visit, Dr. Divelbiss recommended surgical intervention and performed tenolysis of the left index

finger extensor digitorum communis tendon as well as removal of foreign body from left long

finger. (Tr. 199). After surgery, Claimant completed physical therapy and a functional capacity

evaluation revealed Claimant capable of performing work in the light duty status exerting up to

twenty pounds force occasionally and/or up to ten pounds of force frequently and/or a negligible

amount of force constantly to move objects. (Tr. 200). Dr. Divelbiss discharged Claimant from

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his care finding Claimant’s overall motion had improved, but he was still struggling with pain

primarily in the index finger. Dr. Divelbiss noted in a functional capacity evaluation, Claimant

demonstrated inconsistent performances and self-limited behavior. (Tr. 200).

At the evaluation, Claimant reported ongoing symptoms of left hand pain, decreased grip

strength, difficulty with straightening his fingers, persistent numbness and sensitivity to

temperature changes. (Tr. 200). Claimant smokes a package of cigarettes each day. (Tr. 200).

Claimant reported having ongoing symptoms of back pain with radiating pain into the right leg

and symptoms of numbness and tingling into right lower extremity. (Tr. 201). Claimant

described difficulty with prolonged standing, prolonged walking, prolonged sitting, lifting, and

bending. Examination showed decreased grip and pinch strength, weak extensor strength, and

pain with resisted extension. Examination of his lumbosacral spine revealed tenderness to the

lower paraspinal muscles, full range of motion, and straight leg test negative in both lower

extremities. Dr. Stuckmeyer agreed with the limitations placed upon Claimant in the functional

capacity evaluation and noted Claimant has ongoing symptoms of low back pain and radicular

symptoms into the lower extremity. Dr. Stuckmeyer opined as follows: “[t]he synergistic effect of

the disabilities creates a greater overall disability to the body as a whole than the mere simple sum

of the disabilities and I would render a 15 percent augmentation factor.” (Tr. 201).

The October 14, 2005 MRI showed a small lesion in the lateral wrist, likely representing a

small ganglion. (Tr. 299).

On August 25, 2008, Claimant reported having left wrist pain and needing a medication

refill. (Tr. 212, 352). Examination showed no skeletal tenderness or joint deformity. (Tr. 213,

353). In a follow-up visit to Lincoln County Medical Center on September 15, 2008, Claimant

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reported chronic anxiety and bipolar disorder as chronic problems. (Tr. 216, 356). The examiner

recommended that Claimant see a psychiatrist and an orthopedist. (Tr. 217, 357).

In the August 22, 2008 emergency room treatment note at St. Joseph Hospital West,

Claimant reported withdrawal inasmuch as he has been out of all medication for four days. (Tr.

269). The emergency room doctor provided Claimant with medication refills. (Tr. 278).

In the September 10, 2008 emergency room treatment note at St. Joseph Hospital West,

Claimant reported agitation and abdominal pain. (Tr. 263). Claimant reported a history of anxiety

and being out of medication, Xanax. (Tr. 263, 267). Psychiatric examination showed Claimant’s

memory and judgment to be normal, his mood to be anxious but not exhibiting a depressed mood.

(Tr. 264).

On May 13, 2009, Claimant was treated at Crider Health Center. (Tr. 223). He reported

moving from Kansas City two months earlier and while living in Kansas City for nine years, he

worked as a truck driver and in a warehouse. Claimant reported being unemployed since 2004 and

being denied SSI after several appeals. Claimant reported being hospitalized for anxiety attacks.

(Tr. 223). In 2001, Claimant was arrested for marijuana possession and failed to complete drug

counseling in 2005. (Tr. 224). Claimant reported being out of Paxil for three days and Vistaril for

two weeks. (Tr. 224). Dr. Syed Raza diagnosed Claimant with major depressive disorder and

panic disorder and having severe stressors including financial and family. (Tr. 225). As treatment,

the doctor prescribed Paxil, Trazodone, and Vistaril. (Tr. 225).

In follow-up treatment at Crider Health Center on July 8, 2009, Claimant acknowledged he

is waiting for disability to decide, and he continues to be frustrated, anxious, and depressed about

his present situation. (Tr. 308). Dr. Raza noted that Claimant “is aware that if disability is to be

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decided, it will have to be on the basis of his physical problems involving his wrists.” (Tr. 308).

Dr. Raza observed Claimant to be unkempt, ungroomed, and unshaven. Dr. Raza diagnosed

Claimant major depressive disorder and panic disorder and adjusted his medication regimen. (Tr.

308).

On July 23, 2009, Dr. Inna Park completed an internal medicine examination at the request

of the state agency. (Tr. 227). Back and leg pain and hand pain were his chief complaints.

Claimant reported taking Tramadol taking the edge off of his pain. Claimant is right hand

dominant and most of his difficulties are with his left hand. He has difficulty twisting off caps from

a soda can. (Tr. 227). Claimant reported being able to walk for seven blocks, stand for one hour,

and sit in the living room for two hours and the dining room table for twenty minutes. (Tr. 227-

28). Claimant is a smoker and denied any illicit drug use. (Tr. 228). Examination showed

tenderness along the lumbar spinal scar and muscular tenderness in the lumbar region. (Tr. 228-

29). Dr. Park observed Claimant to get on and off the examination table cautiously, and his gait to

be moderately antalgic. (Tr. 229). Dr. Park listed in the clinical impression chronic low back pain,

fine motor and strength difficulties in his non-dominant hand, and recent onset of right knee

arthralgias. (Tr. 229). In the Range of Motion Values, Dr. Park found Claimant’s grip strength to

be 3 out of 5 in his left hand and 5 out of 5 in his right hand. (Tr. 233). Examination showed

Claimant able to fully extend and make a fist with both hands and fingers could be opposed with

his right hand but not his left. (Tr. 233).

Dr. Sherman Sklar completed an evaluation of Claimant on referral on July 23, 2009 and

reviewed the Crider Mental Health Center treatment notes and a function report completed by

Claimant’s ex-wife. (Tr. 236). His chief complaints included bipolar, anxiety, depression disorder,

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and problems with people and crowds. (Tr. 236). Claimant reported never being hospitalized for

psychiatric treatment, but he has visited emergency rooms for symptoms of anxiety. Claimant

reported taking Buspirone, Tramadol, Paroxetine, Trazodone, and Alprazolam and the medications

benefitting him by making him less irritable and calming him down. (Tr. 236). Claimant earned his

GED while serving in the Army Reserves. (Tr. 237). With respect to his present functioning,

Claimant reported going for walks and visiting his grandchildren. Claimant reported his anxiety

being under control at that time. (Tr. 237). Claimant acknowledged heavy use of marijuana often

on a daily basis to help him cope with his mood issues. (Tr. 237-38). He attended treatment and

has been clean for three months. (Tr. 238). Dr. Sklar observed his affect to be generally

controlled though underlying anger to be evident from time to time. (Tr. 238). Claimant lives in a

trailer with his ex-wife and twenty year old daughter. (Tr. 239). Claimant does some light

cooking and helps with the household chores and enjoys fishing, watching television, going for

walks, and visiting with his grandchildren. Dr. Sklar diagnosed Claimant with depressive disorder

and cannabis dependence and assessed his GAF to be 57. (Tr. 239). Claimant reported receiving

outpatient psychiatric treatment in the form of medication, and the medication is helpful. (Tr.

240).

In the Psychiatric Review Technique completed by Dr. Robert Cottone on August 10,

2009, affective disorders and substance addiction disorders are listed . (Tr. 241). Dr. Cottone

recommended a MRFC and Claimant needs to avoid work involving public contact. (Tr. 251). He

found Claimant to be cognitively intact. Dr. Cottone noted that the third party function report

“appears to limit him more than would be anticipated given the current MSE and the current

diagnosis. He must avoid substances of abuse.” (Tr. 251). In the Mental Health Functional

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Capacity Assessment, Dr. Cottone noted Claimant to be markedly limited in his ability to

understand and remember detailed instructions and to interact appropriately with the general

public. (Tr. 253-54). Dr. Cottone opined that Claimant “must avoid work involving intense or

extensive interpersonal interaction; handling complaints or dissatisfied customers; close proximity

to co-workers; close proximity to available controlled substances; public contact.” (Tr. 255).

Further, Dr. Cottone found Claimant can understand and remember and carry out simple tasks,

relate adequately to co-workers or supervisors, and adjust adequately to ordinary changes in work

routine. (Tr. 255).

In the Physical Residual Functional Capacity Assessment dated August 10, 2009, Kevin

Threlkeld listed lumbar laminectomy and left hand injury as Claimant’s primary diagnosis. (Tr.

256). He found Claimant could occasionally lift twenty pounds and frequently lift ten pounds;

stand and/or walk at least two hours in an eight-hour workday; and sit about six hours in an eight-

hour workday. (Tr. 257). He limited Claimant’s ability to push and/or pull in upper and lower

extremities. (Tr. 257). With respect to postural limitations, he found Claimant could never

balance and occasionally climb, stoop, kneel, crouch, and crawl. (Tr. 259). He found Claimant

limited in his ability to handle and finger on his left hand only. He indicated that

Claimant has no visual or communicative limitations established. (Tr. 259-60). With respect to

environmental limitations, he found Claimant should avoid concentrated exposure to extreme heat

and cold, humidity, hazards, and heights, because of Claimant’s use of pain medication with

possible fatiguing side effect. (Tr. 260).

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On September 9, 2009, Claimant reported experiencing hand tremors most likely caused by

his failure to take his afternoon Xanax dosage. (Tr. 309). Dr. Raza adjusted his medication

regimen. (Tr. 309).

In the September 22, 2009 treatment note from Crider Health Center, Claimant returned

for a medication refill. (Tr. 279). Claimant reported smoking one package of cigarettes for thirty-

five years. (Tr. 279). Claimant reported fatigue, malaise, back pain, and bone/joint symptoms.

(Tr. 280). Examination showed Claimant to have no unusual anxiety or evidence of depression.

(Tr. 281). Dr. Blake Anderson prescribed medications as treatment. (Tr. 281-82).

In a follow-up visit on October 6, 2009, Claimant reported back pain resulting from hurting

his back three days earlier while helping lifting\dragging objects. (Tr. 283). Examination showed

Claimant to have no unusual anxiety or evidence of depression. (Tr. 285). Dr. Anderson

prescribed medications as treatment. (Tr. 285-86).

Dr. Timothy McCullough, an emergency room doctor at Lincoln County Medical Center,

treated Claimant on October 18, 2009 after Claimant injured his wrist while throwing trash on a

fire. (Tr. 350). Claimant reported his hand and wrist were bruising and hurting. As treatment, Dr.

McCullough prescribed Vicodin and a wrist splint. (Tr. 350-51).

On October 27, 2009, Claimant reported having left wrist pain in a follow-up visit at Crider

Health Center. (Tr. 287). While working on a dog kennel and carrying sticks, Claimant felt a

crunch in his left forearm. Claimant reported receiving treatment in the emergency room and being

given a name of an orthopedist for follow-up treatment. (Tr. 287). Musculoskeletal examination

showed a full range of motion. (Tr. 288). In the assessment, Dr. Anderson noted Claimant has

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pain in the joint of his forearm stemming from an injury two weeks earlier. (Tr. 289). Dr.

Anderson continued his medication regimen. (Tr. 289).

On November 9, 2009, Dr. Subbarao Polineni examined Claimant. (Tr. 318). Claimant

reported having a degloving injury, but Dr. Polineni noted not seeing signs, just a flap type of

avulsion with a sutured area. Examination showed a full range of motion at the IP joints. On

November 12 and December 23, 2009, Claimant failed to appear for his scheduled follow-up

appointments. (Tr. 318).

On November 11, 2009, Claimant reported doing physically well during treatment at Crider

Health Center. (Tr. 310). Claimant blamed his financial situation causing stress. He spends his

free time watching television and walking around the farm. Dr. Raza adjusted his medications.

(Tr. 310).

In follow-up treatment on November 17, 2009 at the Crider Health Center, Dr. Blake

referred Claimant to pain management as treatment for his severe back pain and prescribed

Percocet. (Tr. 292).

In the January 20, 2010 Medical Assessment of Ability to Do Work-Related Activities, Dr.

Syed Raza noted Claimant to have poor/none ability to deal with work stresses and function

independently; and fair ability to follow work rules, relate to co-workers, deal with public, use

judgment, interact with supervisors, and maintain attention/concentration. (Tr. 306). With respect

to making performance adjustments, Dr. Raza found Claimant to have poor/none ability to

understand and carry out complex or detailed instructions, and fair ability to understand and carry

out simple instructions. (Tr. 306). As support, Dr. Raza noted that Claimant remains very

anxious, stressed out, worried, and emotionally uncomfortable. (Tr. 307). Dr. Raza opined that

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these limitations have been present for six years, and his prognosis is poor because his physical

health problems do not respond to treatment. (Tr. 307).

The January 29, 2010 x-ray of the lumbar spine showed minimal upper lumbar

dextroscoliosis and mild to moderate degenerative changes. (Tr. 343).

Dr. Anderson treated Claimant’s chronic back pain on February 4, 2010. (Tr. 324-25).

On March 10, 2010 treatment note, Dr. Raza noted Claimant missed his January

appointment and noted he had been diagnosed with acid reflux. (Tr. 321). He reported his only

source of income to be food stamps. Dr. Raza adjusted Claimant’s medications. (Tr. 321).

The April 20, 2010 MRI of Claimant’s lumbar spine showed grade 1 retrolisthosis at L5-

S1, moderate mixed central disc protrusion at L5-S1, moderate to large broad-based disc

herniation lt L3-L4 with likely compression of right L3 nerve root. (Tr. 336).

On April 21, 2010, Claimant returned to Dr. Anderson for review of his x-ray and MRI of

his lumbar spine. (Tr. 327). Dr. Anderson referred Claimant to an orthopedic surgeon for

treatment. (Tr. 329).

In a follow-up visit on May 5, 2010, Claimant reported experiencing much pain and having

two bulging discs in the lumbar region. (Tr. 322). Dr. Raza refilled his medications. (Tr. 322).

Claimant returned on June 30, 2010, and reported pain in lumbar, lower thoracic region and

waiting to start treatment at a pain management clinic. (Tr. 323).

On June 23, 2010, Claimant reported having sores on legs and back pain after falling down

stairs. (Tr. 330). Examination showed posterior tenderness of his spine and limited range of

motion. (Tr. 332). Dr. Anderson ordered pain management as treatment. (Tr. 333).

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On August 19, 2010, Dr. Adam LaBore evaluated Claimant’s back pain radiating to the

right lower extremity. (Tr. 374). In the surgical consultation, Claimant reported back pain starting

in 1988 and gradually becoming worse over the last several months. (Tr. 375). Claimant reported

being disabled and smoking less than one half package of cigarettes each day. (Tr. 375).

Examination showed lumbar range of motion poorly tolerated in all planes. In the impression, Dr.

LaBore noted radicular low back pain with multilevel disc herniations and multilevel degenerative

changes. (Tr. 375). Dr. LaBore instructed Claimant to continue with pain management physician.

(Tr. 375-76).

On August 26, 2010, Dr. Suresh Krishnan completed a pain management consultation on

referral by Dr. Anderson. (Tr. 360). Claimant reported pain in his lower back caused by a lifting

injury. Claimant reported not being able to walk more than a half a mile before experiencing pain.

With respect to his social life, Claimant indicated that “[p]ain has no significant effect on my social

life apart from limiting my more energetic interests (e.g. dancing, etc.).” (Tr. 360). Claimant

reported decreased activity level and fatigue. (Tr. 361). Dr. Krishnan observed Claimant able to

transfer and ambulate around the room and heel and toe walk. Cognitive assessment revealed no

abnormalities, his affect to be appropriate, and oriented to person, place, time, and event. (Tr.

361). After examination, Dr. Krishnan found Claimant to have normal cervical flexion and

extension and left and right wrist. (Tr. 362). His left-handed and right handed grip strength and

fingering were found to be normal. Lumbar/lower extremity examination showed lower back to be

normal and palpation of lumbar spine to be normal. (Tr. 362). Claimant experienced moderate

pain during lumbar deflexion and reduced range of motion. (Tr. 363). Dr. Krishnan diagnosed

Claimant with lumbar disc displacement, degeneration of lumbar, and postlaminectomy syndrome

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of lumbar region. Dr. Krishnan considered Claimant’s prognosis to be poor and opined Claimant

may or may not recover completely. For relief of his symptoms, Dr. Krishnan recommended

lumbar epidural steroid injection and medications for pain relief. Dr. Krishnan also instructed

Claimant to continue current home exercises and physical therapy program and to stop smoking.

(Tr. 363).

IV.

The ALJ's Decision

The ALJ found that Claimant meets the insured status requirements of the Social Security

Act through June 30, 2010. (Tr. 15). Claimant has not engaged in substantial gainful activity

since September 20, 2008, the alleged onset date. (Tr. 15). The ALJ found that the medical

evidence establishes that Claimant had the following severe impairments: status post multiple

surgeries on the left hand, degenerative disc disease, major depressive disorder, panic disorder,

personality disorder, and history of substance abuse, but no impairment or combination of

impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No.

4. (Tr. 15-16). The ALJ opined that Claimant has the residual functional capacity to perform less

than a full range of sedentary work. (Tr. 18). The ALJ found that Claimant can lift and carry up

to ten pounds occasionally and frequently, he can stand or walk for up to four hours in an eight-

hour workday; can frequently use hand/arm controls secondary to left hand problems, can use foot

and leg controls repetitively; and can grip, grasp and make a fist with both hands. The ALJ noted

that inasmuch as Claimant has the absence of feeling in his left hand, he can occasionally finger

with his left hand. With his right hand, he can finger repetitively. The ALJ further opined that

Claimant can frequently handle objects with both hands and frequently reach overhead and to the

side. Claimant can never climb ladders, ropes or scaffolds, and can occasionally stoop, crouch, and

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crawl. Claimant can perform simple, repetitive tasks; can maintain attention and concentration for

short periods of time, can interact with the public less frequently but is not completely excluded

from work with the general public. The ALJ opined Claimant can have contact with supervisors

and coworkers as needed, but he works better with things than people. Claimant can adjust to

occasional changes in the work setting and cannot drive. (Tr. 18). The ALJ found that Claimant is

unable to perform any past relevant work as a truck driver or warehouse worker. (Tr. 22).

The ALJ found Claimant was born on August 27, 1964, and was forty-four years old which

is defined as a younger individual age 45-49 on the alleged disability onset date. (Tr.22). The ALJ

noted Claimant has at least a high school education and able to communicate in English. The ALJ

noted that the transferability of job skills is not an issue because using the Medical-Vocational

Rules supports a finding that Claimant is not disabled whether or not Claimant has transferable job

skills. Considering Claimant’s age, education, work experience, and residual functional capacity,

the ALJ opined there are jobs that exist in significant numbers in the national economy that

Claimant can perform such as eye glass assembler, printed circuit board assembly, and surveillance

system monitor. (Tr. 22). The ALJ concluded that Claimant was not under a disability from

September 20, 2008, through the date of this decision. (Tr. 23).

V.

Discussion

In a disability insurance benefits case, the burden is on the claimant to prove that he or she

has a disability. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Social

Security Act, a disability is defined as the “inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period of not less

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than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Additionally, the claimant will

be found to have a disability “only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but cannot, considering his age,

education and work experience, engage in any other kind of substantial gainful work which exists

in the national economy.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B); see also Bowen v.

Yuckert, 482 U.S. 137, 140 (1987).

The Commissioner has promulgated regulations outlining a five-step process to guide an

ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the

individual is engaged in “substantial gainful activity.” If she is, then she is not eligible for disability

benefits. 20 C.F.R. § 404. 1520(b). If she is not, the ALJ must consider step two which asks

whether the individual has a “severe impairment” that “significantly limits [the claimant’s] physical

or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant is not

found to have a severe impairment, she is not eligible for disability benefits. If the claimant is

found to have a severe impairment the ALJ proceeds to step three in which he must determine

whether the impairment meets or is equal to one determined by the Commissioner to be

conclusively disabling. If the impairment is specifically listed or is equal to a listed impairment, the

claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the impairment is not listed or is not

the equivalent of a listed impairment, the ALJ moves on to step four which asks whether the

claimant is capable of doing past relevant work. If the claimant can still perform past work, she is

not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ

proceeds to step five in which the ALJ determines whether the claimant is capable of performing

other work in the national economy. In step five, the ALJ must consider the claimant’s “age,

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education, and past work experience.” Only if a claimant is found incapable of performing other

work in the national economy will she be found disabled. 20 C.F.R. § 404.1520(f); see also

Bowen, 482 U.S. at 140-41 (explaining five-step process).

Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be

affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274

F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough

that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review

“is more than an examination of the record for the existence of substantial evidence in support of

the Commissioner’s decision, we also take into account whatever in the record fairly detracts from

that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will affirm the

Commissioner’s decision as long as there is substantial evidence in the record to support his

findings, regardless of whether substantial evidence exists to support a different conclusion. Haley

v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).

In reviewing the Commissioner's decision, the Court must review the entire administrative

record and consider:

1.

2.

3.

4.

5.

The credibility findings made by the ALJ.

The claimant's vocational factors.

The medical evidence from treating and consulting physicians.

The claimant's subjective complaints relating to
exertional and non-exertional activities and impairments.

Any corroboration by third parties of the
claimant's impairments.

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6.

The testimony of vocational experts when required which
is based upon a proper hypothetical question which sets forth the claimant's
impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting

Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).

The ALJ’s decision whether a person is disabled under the standards set forth above is

conclusive upon this Court “if it is supported by substantial evidence on the record as a whole.”

Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547 F.3d 933, 935

(8th Cir. 2008)). “Substantial evidence is less than a preponderance but is enough that a

reasonable mind would find it adequate to support the conclusion.” Wiese, 552 F.3d at 730

(quoting Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). When reviewing the

record to determine whether the Commissioner’s decision is supported by substantial evidence,

however, the Court must consider evidence that supports the decision and evidence that fairly

detracts from that decision. Id. The Court may not reverse that decision merely because

substantial evidence would also support an opposite conclusion, Dunahoo v. Apfel, 241 F.3d 1033,

1037 (8th Cir. 2001), or it might have “come to a different conclusion.” Wiese, 552 F.3d at 730.

Thus, if “it is possible to draw two inconsistent positions from the evidence and one of those

positions represents the agency’s findings, the [Court] must affirm the agency’s decision.”

Wheeler v. Apfel, 224 F.3d 891, 894-95 (8th Cir. 2000). See also Owen v. Astrue, 551 F.3d 792,

798 (8th Cir. 2008) (the ALJ’s denial of benefits is not to be reversed “so long as the ALJ’s

decision falls within the available zone of choice”) (internal quotations omitted).

Claimant argues that the ALJ’s decision is not supported by substantial evidence on the

record as a whole, because the ALJ failed to include in the RFC mental limitations. Claimant

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contends that the ALJ erred at step 5 in finding that he could perform work as an eyeglass

assembler and a printed circuit board assembler in light of the vocational expert opining that such

jobs were precluded by the limitation to occasional fingering with his left hand. Claimant further

contends that the ALJ erred in weighing the medical opinion evidence.

A.

Residual Functional Capacity

Claimant argues that the ALJ’s decision is not supported by substantial evidence on the

record as a whole, because the ALJ failed to include in the RFC mental limitations. In particular,

Claimant contends the ALJ failed to include mental limitations such as dealing with work stress or

relating predictably in social situations, among other limitations.

A claimant's RFC is what he can do despite his limitations. Dunahoo v. Apfel, 241 F.3d

1033, 1039 (8th Cir. 2001). The claimant has the burden to establish his RFC. Eichelberger v.

Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The ALJ determines a claimant's RFC based on all

relevant, credible evidence in the record, including medical records, the observations of treating

physicians and others, and the claimant's own description of his symptoms and limitations. Goff v.

Barnhart, 421 F.3d 785, 793 (8th Cir. 2005); Eichelberger, 390 F.3d at 591; 20 C.F.R. §

404.1545(a). The ALJ is "required to consider at least some supporting evidence from a [medical

professional]" and should therefore obtain medical evidence that addresses the claimant's ability to

function in the workplace. Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (internal

quotation marks and citation omitted). An ALJ's RFC assessment which is not properly informed

and supported by some medical evidence in the record cannot stand. Id.

The ALJ found that Claimant has the residual functional capacity to perform less than a full

range of sedentary work. He can lift and carry up to ten pounds occasionally and frequently, he

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can stand or walk for up to four hours in an eight-hour workday; can frequently use hand/arm

controls secondary to left hand problems, can use foot and leg controls repetitively; and can grip,

grasp and make a fist with both hands. The ALJ further found that inasmuch as Claimant has the

absence of feeling in his left hand, he can occasionally finger with his left hand. With his right

hand, he can finger repetitively. He can frequently handle objects with both hands and frequently

reach overhead and to the side. Claimant can never climb ladders, ropes or scaffolds, and can

occasionally stoop, crouch, and crawl. He can perform simple, repetitive tasks; can maintain

attention and concentration for short periods of time, can interact with the public less frequently

but is not completely excluded from work with the general public. The ALJ opined Claimant can

have contact with supervisors and coworkers as needed, but he works better with things than

people. Claimant can adjust to occasional changes in the work setting and cannot drive.

The determination of Claimant’s credibility is for the Commissioner, and not the Court, to

decide. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). The ALJ may not discredit

Claimant’s complaints of pain solely because they are unsupported by objective medical evidence.

O’Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003); Jones v. Chater, 86 F.3d 823, 826 (8th

Cir. 1996); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted).

Instead, the ALJ must fully consider all of the evidence relating to the subjective complaints,

including the Claimant’s work record, the absence of objective medical evidence to support the

complaints, and third party observations including treating and examining doctors as to:

1.

2.

3.

claimant’s daily activities;

duration, frequency and intensity of the pain;

precipitating and aggravating factors;

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4.

5.

dosage, effectiveness and side effects of medication;

functional restrictions.

Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008) (citing Polaski v. Heckler, 739 F.2d 1320, 1322

(8th Cir. 1984)). The ALJ may disbelieve the claimant’s subjective complaints “if there are

inconsistencies in the evidence as a whole.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.

2004).

When determining a claimant’s complaints of pain, the ALJ may disbelieve such complaints

if there are inconsistencies in the evidence as a whole. Polaski, 739 F.2d at 1322. The ALJ must

make express credibility determinations detailing the inconsistencies in the record that support the

discrediting of the claimant’s subjective complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.

2000); see also Johnson v. Secretary of Health and Human Servs., 872 F.2d 810, 813 (8th Cir.

1989). “An ALJ must do more than rely on the mere invocation of Polaski to insure safe passage

for his or her decision through the course of appellate review.” Harris v. Shalala, 45 F.3d 1190,

1193 (8th Cir. 1995). Where an ALJ explicitly considers the Polaski factors but then discredits a

claimant’s complaints for good reason, his decision should be upheld. Browning v. Sullivan, 958

F.2d 817, 821 (8th Cir. 1992). However, the Eighth Circuit has held that an ALJ is not required to

discuss each Polaski factor methodically. Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1966). The

ALJ’s analysis will be accepted as long as the opinion reflects acknowledgment and consideration

of the factors before discounting the claimant’s subjective complaints. Lowe v. Apfel, 226 F.3d

969, 972 (8th Cir. 2000); see also Brown, 87 F.3d at 966. The ALJ’s credibility findings are

entitled to deference if the findings are supported by multiple valid reasons. See Goff v. Barnhart,

421 F.3d 785, 791-92 (8th Cir. 2005); Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003) (if

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ALJ explicitly discredits claimant and gives good reasons for doing so, court will normally defer to

credibility determination). The ALJ considered the inconsistencies in the records as a whole,

including Claimant’s improvement with treatment, the medical evidence, and Claimant’s demeanor

and testimony at the hearing. The lack of objective medical basis to support Claimant's subjective

descriptions is an important factor the ALJ should consider when evaluating those complaints. See

Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995) (lack of objective findings to support pain is

strong evidence of lack of a severe impairment); Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir.

1994) (the ALJ was entitled to find that the absence of an objective medical basis to support

claimant's subjective complaints was an important factor in evaluating the credibility of her

testimony and of her complaints). The ALJ noted that although Claimant asserts that he is unable

to work due to a hand injury, back pain, right leg pain, anxiety, and bipolar, the clinical and

objective medical findings are inconsistent with an individual experiencing totally debilitating

symptomatology. The ALJ then addressed other inconsistencies in the record to support his

conclusion that Claimant's complaints were not credible. The undersigned finds that the ALJ’s

credibility determination is supported by substantial evidence in the record as a whole.

Specifically, the ALJ noted that no treating physician stated that Claimant was

disabled or unable to work during the relevant time period. See Young v. Apfel, 221 F.3d 1065,

1069 (8th Cir. 2000) (significant that no examining physician submitted medical conclusion that

claimant is disabled or unable to work); Edwards v. Secretary of Health & Human Servs., 809 F.2d

506, 508 (8th Cir. 1987) (examining physician's failure to find disability a factor in discrediting

subjective complaints). The lack of objective medical basis to support Claimant's subjective

descriptions is an important factor the ALJ should consider when evaluating those complaints. See

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Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995)(lack of objective findings to support pain is

strong evidence of lack of a severe impairment); Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir.

1994)(the ALJ was entitled to find that the absence of an objective medical basis to support

claimant's subjective complaints was an important factor in evaluating the credibility of her

testimony and of her complaints). In addition, the ALJ noted that no physician had ever made any

medically necessary restrictions, restrictions on his daily activities, or functional or physical

limitations. Likewise, the medical evidence is devoid of any evidence showing that Claimant's

condition has deteriorated or required aggressive medical treatment although Claimant testified

otherwise at the hearing. See Id.; Ply v. Massanari, 251 F.3d 777, 779 (8th Cir. 2001) (noting a

claimant's inconsistent statements as a factor to consider in determining claimant's credibility). The

undersigned further notes that the medical records show Claimant to be noncompliant with

medications at times, and he missed scheduled doctor’s appointments. Wildman v. Astrue, 596

F.3d 959, 965-66 (8th Cir. 2010) (“noncompliance can constitute evidence that is inconsistent with

a treating physician’s medical opinion”); 20 C.F.R. §§ 404.1530, 416.930 (unjustified failure to

follow prescribed treatment is grounds for denying disability).

Likewise, the ALJ found that the medical evidence showed Claimant’s impairments

improved with treatment.4 The ALJ noted that the medical records showed that the medications

have been relatively effective in controlling many of his symptoms. Claimant’s pain improved with

epidural steroids and medication. Further, his allegations regarding decreased strength in his left

hand is refuted by the objective testing and his own reporting of activities including helping lifting

4Although not discussed by the ALJ, the medical record shows after surgical intervention and
physical therapy as treatment for his left hand, Dr. Dibelbiss noted in a functional capacity
evaluation, Claimant demonstrated inconsistent performances and self-limited behavior.

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and/or dragging objects and carrying objects such as sticks. Likewise, Claimant reported his

psychiatric medications benefitted him, made him less irritable, and calmed him down. Claimant

also reported receiving outpatient psychiatric treatment in the form of medication, and the

medication is helpful, and his anxiety being under control at that time. Conditions which can be

controlled by treatment are not disabling. See Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir.

2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if impairment can be

controlled by treatment, it cannot be considered disabling); Medhaug v. Astrue, 578 F.3d 805, 813

(8th Cir. 2009). Additionally, the absence of side effects from medication is a proper factor for the

ALJ to consider when determining whether a claimant’s complaints of disabling pain are credible.

See Depover v. Barnhart, 349 F.3d 563, 566 (8th Cir. 2003) (“We [] think that it was reasonable

for the ALJ to consider the fact that no medical records during this time period mention [the

claimant’s] having side effects from any medication.”). During various evaluations, the doctors

observed Claimant to be alert, ori