James Tippe v. Carolyn W. Colvin

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Raymond W. Gruender and Duane Benton (UNPUBLISHED) [4457159] [16-1436]

United States Court of Appeals
For the Eighth Circuit
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No. 16-1436
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James Tippe
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 22, 2016
Filed: October 11, 2016
[Unpublished]
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
James Tippe applied for Social Security disability insurance benefits and
supplemental security income in March 2011, alleging a disability onset date of
October 31, 2008. Tippe had a long history of cocaine and alcohol abuse. His
application was denied on initial application and review based on a finding that
“alcoholism or drug addiction would . . . be a contributing factor material to the

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Commissioner’s determination that the [claimant] is disabled.” 42 U.S.C.
§ 423(d)(2)(C). Tippe requested an administrative hearing. The Administrative Law
Judge (“ALJ”) agreed that substance abuse was material to Tippe’s disabilities and
denied benefits. Tippe appealed, and the Commissioner’s Appeals Council remanded
for consideration of a prior work performance assessment and new evidence.
After a second hearing, the ALJ again denied benefits in an October 6, 2014
decision. The ALJ concluded that Tippe had severe but not listed impairments
throughout the period at issue -- anxiety disorder, depressive disorder, and personality
disorder. Because Tippe testified that he has been free of substance abuse since July
2011, the ALJ separately considered whether he was disabled with and without
substance abuse. See SSR 13-2p, 78 Fed. Reg. 11,939 (Mar. 22, 2013). The ALJ
found that he was disabled prior to ending substance abuse but was not entitled to
benefits, because the substance abuse was a contributing factor material to his
disability.1 For the later period, when Tippe was free of substance abuse, the ALJ
weighed the extensive record evidence and determined that he retained the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels,
so long as the work is not fast-paced and is limited to simple, routine tasks involving
minimal interaction with others. Based on a vocational expert’s testimony that a
person with this RFC is capable of performing packager and warehouse worker jobs
that exist in significant numbers in the national and local economy, the ALJ found
that Tippe was not disabled.

1

It is unclear whether Tippe’s 73-page brief on appeal challenges this
determination. If so, the challenge is without merit. Tippe admitted that he lost many
jobs because of missed work during drug relapses. In response to a question by
Tippe’s attorney at the second hearing, the vocational expert testified that a person
with more than two work absences a month is not able to work competitively.
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After the Appeals Council denied review, Tippe commenced this action
seeking judicial review of the ALJ’s adverse decision. The district court2 affirmed,
concluding that the ALJ’s determination is supported by substantial evidence on the
administrative record as a whole. Tippe appeals. Applying the same deferential
standard, we affirm. See Welsh v. Colvin, 765 F.3d 926, 927 (8th Cir. 2014).
On appeal, Tippe first argues the ALJ erred in failing to give controlling or
substantial weight to the medical opinions of two examining psychiatrists at the
University of Iowa Hospitals & Clinics, Dr. Aaron Kauer and Dr. Anvi Vora. Both
doctors completed Medical Source Statement (“MSS”) forms in which they checked
boxes reporting that Tippe’s abilities to function when not using drugs or alcohol
were “markedly” limited. These limitations, if found by the ALJ, would require a
determination that Tippe’s anxiety disorder is disabling. 20 C.F.R. pt. 404, subpt. P,
App. 1, § 12.06(B). Dr. Vora completed the MSS form ten days after her treatment
notes reported an interview in which Tippe stated that he “has been working towards
SSI disability” and “will tell his lawyer that we are willing to help with this process.”
The ALJ gave these assessments “some” or “little” weight because “the statement
regarding a limited ability to work is an issue reserved for the Commissioner,”
answers to form questionnaires that simply check off boxes are entitled to less weight,
the pattern of marking limitations was the same on each form, and both physicians
failed to address the fact that Tippe “does not comply with treatment.”
“A treating physician’s opinion is given controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” House v. Astrue, 500 F.3d
741, 744 (8th Cir. 2007) (quotation omitted). However, treating physician opinions
may receive limited weight if they are “conclusory or inconsistent with the record.”

2

The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
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Julin v. Colvin, 826 F.3d 1082, 1088 (8th Cir. 2016). A treating physician opinion
that fails to address treatment noncompliance and is conclusory, consisting of
“checklist forms, cit[ing] no medical evidence, and provid[ing] little to no
elaboration,” is “properly discounted.” Wildman v. Astrue, 596 F.3d 959, 964 (8th
Cir. 2010). Tippe contends that his repeated noncompliance was a justifiable
symptom of his mental impairments, citing Pate-Fires v. Astrue, 564 F.3d 935 (8th
Cir. 2009). However, Pate-Fires is distinguishable because, as in Wildman, “there is
little or no evidence expressly linking [Tippe’s] mental limitations to [his] repeated
noncompliance.” 596 F.3d at 966. Like the district court, we conclude that
substantial evidence supports the ALJ’s determination to discount these opinions.
Tippe further argues that the ALJ erred in finding that his subjective claims
regarding the effects of his mental impairments were not credible to the extent they
conflicted with the ALJ’s RFC determination. In weighing credibility, the ALJ
considered Tippe’s test results showing cognitive abilities within broad normal limits,
repeated noncompliance with recommended courses of treatment, and “diverse” daily
activities. The ALJ noted that Tippe’s repeated refusal to follow proposed treatment
“suggests that the symptoms may not have been as limiting as the claimant has
alleged in connection with this application apart from substance abuse.” We agree
with the district court that the ALJ appropriately discredited the extent of Tippe’s
subjective complaints “based on a valid assessment” of the factors outlined in Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
Tippe argues that the ALJ, in evaluating his limitations while sober,
inappropriately relied on statements he made while abusing substances to “discount
evidence of poor functioning” following sobriety. The ALJ noted that Tippe had said
“he was going to ‘milk’ his unemployment for as much as he could,” reported that he
used his unemployment check for drugs and “would lie, steal, and cheat to get money
for more drugs,” and “admits to not trying hard to get work, especially while he had
unemployment benefits.” While most of these statements were made during Tippe’s
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period of substance abuse, they were relevant because (i) Tippe applied for benefits
during that period, and (ii) the statements were relevant to his credibility during the
period he claimed to be free of substance abuse. The ALJ extensively considered the
record evidence of Tippe’s impairments without substance abuse to determine
whether those impairments were disabling. We agree with the district court that the
ALJ adequately evaluated Tippe’s limitations, both with and without substance abuse.
We have carefully considered the additional issues and arguments Tippe raises
on appeal and found them to be without merit. Our review of the extensive
administrative record persuades us that substantial evidence supports the ALJ’s
determination that Tippe was not disabled during the period from October 31, 2008
to October 6, 2014. Accordingly, the judgment of the district court is affirmed.
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