United States District Court, E.D. Arkansas, Jonesboro Division
John Gilbert (“Gilbert”) appeals the final
decision of the Commissioner of the Social Security
Administration (defendant “Berryhill”) to deny
his claim for Disability Insurance Benefits
(“DIB”). Gilbert contends the Administrative Law
Judge (“ALJ”) erred: (1) by discrediting the
opinion Dr. Barrett-Tuck (“Barrett-Tuck”), his
treating neurosurgeon; and (2) erroneously assessing his
residual functional capacity (“RFC”). The parties
ably summarized the medical records and the testimony given
at the administrative hearing conducted on March 14, 2016.
(Tr. 31-65). The Court has carefully reviewed the record to
determine whether there is substantial evidence to support
Berryhill's decision. 42 U.S.C. § 405(g). The
relevant period for this case is from May 20, 2013,
Gilbert's alleged disability onset date, through May 6,
2016, when the ALJ issued his decision.
who was 50 years old at the time of the hearing, was
5'10" and weighed 215. His past work was as a resin
mixer, a job performed at the heavy exertional level. The ALJ
cited Gilbert's “good work history.” (Tr.
41). Gilbert stated he had a driver's license and drives,
and could drive for an hour before needing a break due to
tiring of his hands, poor grip, and hip pain. The hip pain,
according to Gilbert, was from bursitis, which was diagnosed
about two years before the hearing. Gilbert recounted he had
major neck surgery (fusion and laminectomy) in June 2012, and
again in September of that same year. He also had carpal
tunnel syndrome (“CTS”) release surgery on both
hands in 2014. In 2015, Gilbert had surgery on his right
elbow for a bone spur. Gilbert has an 11th grade
education, and later earned his GED. Gilbert's biggest
medical complaint was neck, shoulder, and right arm pain.
(Gilbert testified he is right-handed.) According to Gilbert,
the pain had been treated in the past by a Medrol Dose Pack
and a steroid injection in his neck, and he continued to
treat the pain with over-the-counter
medications. He stated he uses a CPAP for sleep apnea.
He estimated he could lift 10 pounds, and stated he had no
problems lifting his arms over his head.
further questioning by his attorney, Gilbert indicated he had
limited range of motion in his neck and cannot look up and
down for long periods. He stated his “neck freezes
up” if he looks down for 10 minutes. (Tr. 44). Gilbert
stated he experienced “nearly daily” neck pain,
which radiated to his right shoulder and arm, requiring him
to frequently use his left hand. (Tr. 44). For example, he
stated he grips cups and opens jars with his left hand. He
retained the ability to do buttons and zippers with his right
hand, and continued to write with his right hand, though not
for long periods. In addition to over-the-counter
medications, Gilbert said a neck pillow was useful. In
Gilbert's opinion, the right side CTS release surgery was
not successful, and he has daily right hand pain.
his own abilities, Gilbert stated he could sit for a couple
of hours (1-2 hours in an office chair), stand for an hour,
walk for 30-40 minutes, but could not use a computer and type
because of his neck and hand. Gilbert said he had no sleep
apnea problem, and his high blood pressure was controlled
with medication, without any side effects. As for daily
activities, Gilbert stated he does laundry, sweeps with his
left hand, occasionally cooks simple meals, and grocery
shops. Gilbert and his wife are members at a gym. He
testified he no longer lifts free weights, but does use the
weight machine in a sitting position, as well as walking on
the treadmill. (Tr. 35-55).
Elmore (“Elmore”), a vocational expert, testified
Gilbert could not perform his past relevant work. The ALJ
asked Elmore to assume a worker of Gilbert's age,
education, and experience, who could perform light work with
numerous restrictions. Elmore testified that such a worker could
perform jobs, including the jobs of sales attendant and
office helper. The ALJ, in a second hypothetical question
posed to Elmore, added the restrictions that the worker would
work at the sedentary level. Elmore stated such a worker
could perform the jobs of telemarketer and general office
clerk. In his third hypothetical, the ALJ added that the
worker would be unreliable for an eight hour workday. Elmore
indicated there would be no jobs available for such a worker.
May 2016 opinion the ALJ determined Gilbert had the following
severe impairments: cervical spondylosis, sleep apnea, status
post-right elbow surgery, osteoarthritis of the joints, and
CTS. The ALJ assessed Gilbert with the RFC to perform light
work, except for limitations that mirrored the first
hypothetical question posed to Elmore, and listed in footnote
three herein. Citing the relevant factors for assessing
credibility, the ALJ found Gilbert's subjective
allegations were “not entirely consistent” with
the medical evidence. (Tr. 22). The ALJ specifically
addressed the October 2015 opinion of Barrett-Tuck that
Gilbert could perform no work; could do no bending,
squatting, kneeling, or lifting of heavy objects; and could
do no sitting and/or standing for longer periods beginning on
May 9, 2012, and continuing through a date yet to be
determined. The ALJ also considered the reports submitted by
two state agency physicians, who found Gilbert capable of
medium work with some restrictions. The ALJ assigned
“little weight” to Barrett-Tuck's opinion,
commenting that the medical evidence, as well as
Gilbert's own testimony, did not support the open-ended
opinion. (Tr. 23). Thus, the ALJ found Gilbert more capable
than the opinion of Barrett-Tuck. Additionally, the ALJ
assigned “little weight” to the state agency
physicians' opinions because the ALJ found Gilbert less
capable (light work rather than medium) than those doctors.
Relying upon Elmore's testimony, the ALJ found Gilbert
could perform the jobs of sales attendant and office helper.
As a result, the ALJ determined Gilbert was not disabled
during the relevant period. (Tr. 17-26).
in Assigning Barrett-Tuck's Opinion Little
treating physician's medical opinions are given
controlling weight if they are well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
are not inconsistent with the other substantial evidence.
See Choate v. Barnhart, 457 F.3d 865 (8th
Cir. 2006). Barrett-Tuck, Gilbert's treating
neurosurgeon, offered a mix of opinions. First, her opinion
that Gilbert could do no work is not a medical opinion and is
not entitled to special deference since such an opinion
intrudes on the issues which the ALJ is to decide. Ellis
v. Barnhart, 393 F.3d 988 (8th Cir. 2005).
The remaining opinions offered by Barrett-Tuck are medical
opinions which are to be given controlling weight if
well-supported and not inconsistent with other substantial
evidence. In this instance, the medical opinions offered by
Barrett-Tuck are at odds with numerous items in the record,
and the ALJ's decision to assign little weight is well
supported. As previously mentioned, Gilbert's own
testimony runs counter to the opinions of Barrett-Tuck. As
outlined herein, Gilbert described himself with some neck,
shoulder, arm, and hand pain, but his view of his abilities
far exceeded the view of Barrett-Tuck. Also,
Barrett-Tuck's opinion dated Gilbert's limitations as
beginning on May 9, 2012, and continuing until further
evaluation. (Tr. 616). The dates of this opinion run counter
to Gilbert's work history, which shows earnings for the
twelve months after May 2012. (Tr. 208). In addition,
Barrett-Tuck's treatment notes before October 2015 do not
reflect such a limited view of Gilbert's abilities.
Finally, the other medical evidence of record, including the
notes of Dr. Mark Wendel, a physician who treated Gilbert for
pain, are more in line with Gilbert's own testimony of
some discomfort but retaining the ability to perform many
functions. For example, Dr. Wendel noted Gilbert rated
himself at 0 on a pain scale of 1 to 10 in November of 2013.
(Tr. 296). In summary, Barrett-Tuck's October 2015
opinion was properly discounted because other assessments
were supported by better or more thorough medical evidence.
Fentress v. Berryhill, 854 F.3d 1016 (8th
Cir. 2017). There is no merit to this claim for relief.
in Determining RFC:
faults the ALJ's RFC conclusion, arguing that it
overstated his ability to handle, finger, and reach. Gilbert
points to his testimony that he continued to have pain and
numbness after his CTS release surgeries. He also points to a
January 2016 notation from Dr. Swynn indicating problems with
overhead activity. In addition, he cites to a November 2015
treatment note from Baptist Onecare where he reported
numbness in his right hand and his left pinky. (Tr. 800-802).
The treatment note from that visit reflects that Gilbert also
reported that he had chosen not to be seen by pain management
personnel for several months, the pain was not severe, and
that he was coping with over-the-counter medication. (Tr.
is no error in the RFC conclusion reached by the ALJ. The ALJ
is not obligated to base his RFC opinion upon a
claimant's subjective statements, nor is he obligated to
build his RFC determination around the isolated treatment
note of Dr. Swynn. Instead, it “is the ALJ's
responsibility to determine a claimant's RFC based on all
relevant evidence, including medical records, observations of
treating physicians and others, and claimant's own
descriptions of his limitations.” Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). Substantial evidence, including virtually all of the
medical evidence and Gilbert's own testimony, supports
the ALJ's RFC formulation.
summary, we find the ultimate decision of Berryhill was
supported by substantial evidence. We are mindful that the
Court's task is not to review the record and arrive at an
independent decision, nor is it to reverse if we find some
evidence to support a different conclusion. The test is
whether substantial evidence supports the ALJ's decision.