Mike L. Winn v. Commissioner, Social Security Administration

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).

The judgment of the district court is affirmed.