Date: 07-08-2018

Case Style:

Case Number: 17-1987

Judge: Loken

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Western District of Missouri (Cole County)

Plaintiff's Attorney: Tim Harlan

Defendant's Attorney: Matthew N. Sparks

Description: Mike L. Winn applied for Social Security disability insurance benefits between
June 12, 2007, the alleged disability onset date, and December 31, 2012, his “date last
insured.” See 20 C.F.R. §§ 404.130, 404.131, 404.315(a). During Winn’s prior
appeal from the denial of benefits after an administrative hearing, we granted the
Commissioner’s motion to remand for consideration of additional evidence from
Winn’s treating physician and reassessment of his residual functional capacity (RFC).
On remand, the Commissioner’s Appeals Council consolidated a second application
Winn filed in December 2012 and remanded the combined proceedings to an
Administrative Law Judge (ALJ) to consider additional evidence, redetermine Winn’s
RFC, and solicit testimony from a vocational expert (VE). After a hearing at which
Winn and a VE testified, a second ALJ denied Winn’s application for benefits. Winn
petitioned for judicial review. After thorough review, the district court1 upheld the
Commissioner’s denial of disability benefits, concluding that the ALJ’s decision is
supported by substantial evidence on the administrative record as a whole. Winn
appeals. We apply that same standard and affirm. See Van Vickle v. Astrue, 539
F.3d 825, 828 (8th Cir. 2008) (standard of review).
Applying the five-step process defined in 20 C.F.R. § 404.1520(a), the ALJ
found that, during the period in question, Winn suffered from severe but non-listed
impairments -- degenerative disc disease of the cervical spine, carpal tunnel
syndrome, and neuropathy. After considering the entire record including additional
evidence from Winn’s treating physician, the ALJ found that his RFC as of the date
last insured was --
to perform light work as defined in 20 CFR 404.1567(b) except that he
could lift and/or carry and push and/or pull up to 10 pounds occasionally
and 5 pounds frequently; he could stand and walk up to 6 hours in an 8-
hour workday and sit up to 6 hours in an 8-hour workday; he could n[ot]
climb ladders, ropes or scaffolds; he could occasionally climb ramps and
stairs; he could occasionally stoop, kneel, crouch and crawl; he could
frequently reach, but could only occasionally reach overhead; he could
frequently handle, finger and feel; and he needed to avoid hazards such
as dangerous moving machinery or unprotected heights.
1The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
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Based on this RFC, the ALJ found that Winn could not perform his past relevant
work, which was operating heavy equipment at a Missouri rock quarry. However,
based on the VE’s testimony that someone with Winn’s age, education, work
experience, and RFC could perform jobs available in the regional and national
economy at that time, such as bench assembler, laundry worker, and ticket seller, the
ALJ found that Winn was not disabled. On appeal, Winn argues, as he did to the
district court, (1) that the ALJ did not give the opinions of his treating physician, Dr.
Gary LaMonda, sufficient weight; and (2) that the RFC found by the ALJ attributed
greater hand functioning to Winn than the medical evidence supported.
1. The Treating Physician Issue. Dr. LaMonda, an internist, had treated Winn
for many years when, in late 2005, Winn’s complaints of neck and shoulder pain and
hand numbness caused Dr. LaMonda to order an MRI of the cervical spine and to
refer Winn to Dr. Donald Meyer, a pain management specialist. The MRI showed
degenerative disc disease and spinal stenosis. Steroid injections improved Winn’s
pain, but by mid-2007 chronic neck pain led Dr. Meyer to refer Winn to Dr. Jeffrey
Parker, a surgeon. Based on an MRI and a new myelogram, Dr. Parker diagnosed
severe cervical stenosis and recommended that Winn not return to work. In a second
appointment, Dr. Parker diagnosed carpal tunnel syndrome and referred Winn to Dr.
John Havey, who performed carpal tunnel release procedures on each hand. Dr.
Havey opined that Winn was doing well after the procedures but should remain off
work for another month and not do “heavy gripping or lifting.” Later that fall, after
another MRI, Dr. Parker performed fusion surgery on Winn’s cervical spine. Seven
weeks after the surgery, Winn told Dr. Parker he was “doing fine” and had “no
problems at all.” In January 2008, Winn told Dr. Parker his neck pain was gradually
improving but he doubted he could return to work as a heavy-equipment operator.
Dr. Parker kept Winn off work and noted he should consider a different profession.
Also in January 2008, Dr. Havey noted Winn was doing well after his carpal tunnel
surgeries.
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The record reflects that Winn received unemployment compensation benefits
from the fourth quarter of 2007 through the second quarter of 2008. In April 2008,
Winn told Dr. Parker he was experiencing neck soreness and hand numbness and was
pursuing a workers’ compensation claim. Dr. Parker noted mild limitation of cervical
motion but “good grip strength in both hands.” He advised Winn he could return to
light work. The following month, Dr. Daniel Kitchens conducted an independent
medical evaluation of Winn in connection with his workers’ compensation claim.
After reviewing Winn’s extensive medical history, Dr. Kitchens opined that Winn
could “work with light to medium-duty restrictions.” In July, Winn again saw Dr.
Meyer. Though Winn claimed no post-surgery improvement in pain and numbness,
Dr. Meyer opined that Winn’s symptoms were “relatively mild” and his pain “is not
something that should be completely disabling.”
Winn next saw Dr. LaMonda in August 2009. Winn said he felt “okay” but
reported neck and shoulder pain. Neurodiagnostic testing showed some spinal
radiculopathy and severe bilateral carpal tunnel syndrome. Dr. LaMonda referred
Winn to Dr. Thomas Turnbaugh, an orthopedic surgeon, who performed additional
carpal tunnel surgery on Winn’s left wrist in December 2009. At a checkup the next
month, Winn told Dr. LaMonda he felt well except for chronic headaches.
In June 2010, Winn saw Dr. LaMonda for “some paper work” regarding his
disability application. In response to written interrogatories from Winn’s attorney,
Dr. LaMonda stated that Winn’s hands are restricted from ten pound lifting and
repetitive use; he has shoulder pain while standing for fifteen minutes and cannot sit
for more than thirty minutes without having to lie down to stop muscle spasms and
arm pain; his “neck will not tolerate sitting for more than 30 minutes”; his cervical
stenosis precludes “repetitive stooping or standing for more than 30 minutes”; and
lying down every two hours for thirty minutes will relieve pain and muscle spasms.
In December 2010, after the first ALJ found Winn not disabled, Dr. LaMonda
provided a telephonic sworn statement in which he elaborated on these opinions and
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explained his role as internist in coordinating treatment by medical specialists such
as Dr. Meyer, Dr. Parker, and Dr. Havey. Dr. LaMonda opined that, while the MRI
after Winn’s neck surgery showed there was no longer nerve blockage, “because it
was a long-standing impingement on those nerves, he had had long-standing and
permanent damage . . . to both the nerves going to the arms, the C5-6 nerve roots, and
off the spinal cord.”
Winn saw Dr. LaMonda again in November 2011 and February 2012. The
district court agreed with the ALJ that Dr. LaMonda’s notes are ambiguous as to the
effectiveness of Winn’s most recent carpal tunnel procedure. In February 2013, Winn
saw Dr. Dennis Velez for a consultative examination. Dr. Velez observed that Winn
demonstrated “normal range of motion” and “full sensation” during a motor
examination and concluded he “does not have limitations for sitting, standing or
walking.” Dr. Velez opined that Winn “may have some manipulative limitations
using the right hand side, but would not have any lifting or carrying limitations.” In
May 2014, Winn saw Dr. LaMonda, who reported that Winn continued to have severe
carpal tunnel syndrome and chronic pain, despite surgeries.
The ALJ credited Dr. LaMonda’s opinion that Winn could not lift more than
ten pounds but gave limited weight to his other June and December 2010 opinions
because they were not supported by objective medical evidence and were inconsistent
with the opinions of Winn’s specialists, with Dr. Velez’s more recent findings, and
with Winn’s limited treatment history after July 2008. The ALJ gave “significant
weight” to the opinions of Winn’s specialists, Dr. Havey, Dr. Parker, and Dr. Meyer,
and “partial weight” to those of Dr. Kitchens and Dr. Velez. The ALJ credited Dr.
Velez’s opinions that Winn may have manipulative limitations on his right side and
does not have sitting, standing or walking limitations.
The district court concluded that substantial evidence supported the ALJ’s
decision to give Dr. LaMonda’s opinions less weight than those of the specialists
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because the specialists had an equal or greater role in treating Winn’s ailments,
objective medical evidence supported their post-surgery opinions, and Dr. LaMonda
saw Winn relatively few times in the years following his back and carpal tunnel
surgeries. The court also concluded that Dr. Velez’s opinion -- Winn may have
manipulative limitations on his right hand -- was consistent with the ALJ’s finding
that Winn could “frequently” handle, finger, and feel and did not mandate a limitation
that Winn could only “occasionally” do those tasks.
On appeal, Winn argues the ALJ did not accord Dr. LaMonda’s opinions about
Winn’s functional limitations sufficient weight and failed to reevaluate the evidence
in light of Dr. LaMonda’s December 2010 statement, as the Appeals Council
instructed in remanding. Winn emphasizes that Dr. LaMonda treated Winn for over
twenty years and coordinated Winn’s treatment with various specialists. To the
extent Dr. LaMonda’s 2010 opinions were inconsistent with Winn’s specialists’
opinions in 2007 and 2008, Winn notes the specialists saw Winn far fewer times than
Dr. LaMonda and argues that their opinions, even if valid when given, “cannot be
dispositive of [Winn’s] condition years later.”
A treating physician’s opinion will be given controlling weight “if, and only
if, it ‘is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.’” Johnson v.
Astrue, 628 F.3d 991, 994 (8th Cir. 2011); see 20 C.F.R. § 404.1527(c)(2). Here, Dr.
LaMonda and at least three specialists, Drs. Meyer, Parker, and Havey, initially
agreed that Winn suffered from carpal tunnel and cervical spine nerve impairments
that caused him significant pain and left him unable to continue operating heavy
equipment from mid-2007 well into 2008. When more conservative treatments did
not improve these conditions, Dr. Havey and Dr. Parker performed carpal tunnel and
cervical spine fusion surgeries and kept Winn out of work while he recovered. The
surgeons then opined that the surgeries went well.
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In early to mid-2008, based on test results, Dr. Havey noted the post-surgery
carpal tunnel condition would not preclude Winn’s return to work; Dr. Parker opined
that Winn could engage in light work; Dr. Kitchens opined that Winn could “work
with light to medium-duty restrictions”; and Dr. Meyer opined that Winn’s pain “is
not something that should be completely disabling.” There was then a long gap in
treatment until late 2009, when Winn reported pain and underwent another carpal
tunnel surgical procedure. In January 2010, Winn told Dr. LaMonda he was
experiencing no symptoms other than chronic headaches.
The next medical evidence is the opinions set forth in Dr. LaMonda’s June
2010 interrogatory answers. In his December 2010 explanatory statement, Dr.
LaMonda opined that, even if the post-surgery MRIs showed physical improvement,
the surgeries failed because Winn’s permanent nerve damage meant that his pain and
physical limitations would return without the work-precluding restrictions Dr.
LaMonda considered necessary. The problem is, no post-surgery objective medical
evidence supported Dr. LaMonda’s assumption that Winn had suffered permanent,
disabling nerve damage, despite the specialists’ medically supported contrary
opinions. Therefore, on this record, the ALJ did not err in discounting Dr.
LaMonda’s opinions as “not supported by objective medical evidence in the
administrative record.” Gieseke v. Colvin, 770 F.3d 1186, 1188 (8th Cir. 2014). As
in Johnson, 628 F.3d at 995, the physicians who treated Winn had differing opinions
regarding the extent to which his impairments were permanently disabling. “It is the
ALJ’s task to resolve conflicts in the evidence and issues of credibility.” Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006). As long as substantial evidence supports
the ALJ’s decision, we may not reverse because substantial evidence also “would
have supported a contrary outcome, or because we would have decided the case
differently.” Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015) (quotation
omitted).
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2. The Hand Functioning Issue. Winn argues the RFC finding that he could
“frequently handle, finger and feel” failed to reflect Dr. Velez’s opinion, which the
ALJ credited, that Winn may have manipulative limitations on his right hand. When
used in an RFC, the limitation “frequently” means that the activity or condition
occurs between one-third and two-thirds of an eight-hour workday. See SSA
Program Operations Manual System, DI 25001.001. Winn argues the ALJ should
have found that he could only “occasionally” handle, finger, and feel, which means
the activity occurs no more than one-third of the workday. Id. The VE testified that,
if the “occasionally” limitation applied, Winn could not perform the available jobs
she identified but would be able to perform another unskilled light job, counter clerk.
The district court rejected Winn’s contention because the VE identified another
job Winn could perform if limited to occasional handling, fingering, and feeling, and
because “[n]othing compels the conclusion that the limitation to frequent handling,
fingering and feeling (which is less than constant) is not sufficient to encompass Dr.
Velez’s opinion.” We agree. As Winn has never sought unskilled light work, there
is nothing in the record suggesting that his impairments require that he be limited to
occasional rather than frequent handling. Winn argues that Dr. LaMonda’s
discounted opinion made “very clear that [Winn] would have significant problems
with his hands.” But Dr. LaMonda opined that Winn could not perform jobs that
require occasional as well as frequent handling and fingering. The ALJ was not
required to accept any physician’s opinion regarding this element of Winn’s RFC.
“Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.” Cox v.
Astrue, 495 F.3d 614, 619-20 (8th Cir. 2007); see 20 C.F.R. § 404.1527(d)(2).

Outcome: The judgment of the district court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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