Gross v. Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER affirming the determination of the Commissioner and dismissing plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 12/11/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
SHONDA N. GROSS
V.

PLAINTIFF
CASE NO. 1:14CV4-BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Shonda N. Gross has appealed the final decision of the Commissioner of
the Social Security Administration to deny her claim for disability insurance benefits and
supplemental security income. Both parties have submitted appeal briefs and the case is
ready for decision.1
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257
(8th Cir. 1996). In assessing the substantiality of the evidence, the Court has considered

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The parties have consented to the jurisdiction of the Magistrate Judge. (Docket

#4)
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evidence that detracts from the Commissioner’s decision as well as evidence that supports
it.
Ms. Gross alleged that she became limited in her ability to work by bipolar
disorder, anxiety, and manic depression. (SSA record at p. 70) After conducting an
administrative hearing, the Administrative Law Judge2 (ALJ) concluded that Ms. Gross
had not been under a disability within the meaning of the Social Security Act at any time
through October 26, 2012, the date of his decision. (Id. at 27) On November 29, 2013,
the Appeals Council received and considered additional evidence, then denied the request
for a review of the ALJ’s decision, making the ALJ’s decision the final decision of the
Commissioner. (Id. at 4-7) Ms. Gross then filed her complaint initiating this appeal.
(Docket #2)
Ms. Gross was 34 years old at the time of the hearing. (SSA record at 775) She is
a high school graduate in regular classes with two years of college. (Id.) She has past
relevant work as a licensed practical nurse. (Id. at 26)
The ALJ found Ms. Gross had not engaged in substantial gainful activity since
October 12, 2010,3 her alleged onset date. (Id. at 14) He found that Ms. Gross had
“severe” impairments: diabetes mellitus with neuropathy, headaches, back pain, pain
disorder, obesity and depression. (Id.) He found she did not have an impairment or
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The Honorable Don Curdie.

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Many of the medical documents in the 803 page record are from the time period
before Ms. Gross’s alleged onset date.
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combination of impairments that met or equaled a Listing. (Id. at 14-15) He judged that
Ms. Gross’s allegations regarding the intensity, persistence, and limiting effects of her
symptoms were not totally credible. (Id. at 20)
Based on these findings, the ALJ concluded that Ms. Gross retained the residual
functional capacity for light work, but could only occasionally climb, balance, stoop,
bend, crouch, kneel and crawl. Additionally, she would have the ability to perform only
in a work setting where interpersonal contact was incidental to the work performed, the
complexity of the tasks would be learned and performed by rote with few variables, with
little judgment and supervision required, and where instructions were simple, direct, and
concrete. (Id. at 15)
Based on testimony from a vocational expert (VE), the ALJ concluded that Ms.
Gross could not perform her past relevant work but could perform other jobs that existed
in significant numbers in the national economy.4 (Id. at 26-27) Thus, the ALJ concluded
that Ms. Gross was not disabled. (Id. at 27)
Ms. Gross argues that the Appeals Council failed to properly consider a mental
residual functional capacity questionnaire (“Questionnaire”) completed by Olympia
Rosario, M.D., of Families, Inc. at her lawyer’s request four days after the ALJ found her

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The VE identified two jobs that a person with Ms. Gross’s limitations could
perform – parts assembler and cafeteria attendant. (Id. at 27)
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not disabled. (#11 at p. 12) She maintains that the Questionnaire indicates difficulty in
finding the “correct combination and dosage of medications.” (Id.)
When new and material evidence is submitted to the Appeals Council,
[t]he Appeals Council shall evaluate the entire record including the new and
material evidence submitted if it relates to the period on or before the date
of the administrative law judge hearing decision. It will then review the
case if it finds that the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970(b). The newly submitted evidence is to become part of
what we will loosely describe here as the “administrative record,” even
though the evidence was not originally included in the ALJ’s record.
Browning v. Sullivan, 958 F.2d 817, 823 n. 4 (8th Cir. 1992). If the Appeals
Council does not consider the new evidence, a reviewing court may remand
the case to the Appeals Council if the evidence is new and material. See
Williams v. Sullivan, 905 F.2d 214, 217 (8th Cir. 1990). If, as here, the
Appeals Council considers the new evidence but declines to review the
case, we review the ALJ’s decision and determine whether there is
substantial evidence in the administrative record, which now includes the
new evidence, to support the ALJ’s decision. Browning, 958 F.2d at 823.
Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992)(footnote omitted).
It is clear that the Appeals Council considered the evidence Ms. Gross submitted.5
(SSA record at 4, 7) And there is substantial evidence in the record as a whole, including
the Questionnaire, to support the ALJ’s determination.
The Questionnaire completed by Dr. Rosario is a check-the-box type of form in
which she found Ms. Gross to be “unable to meet competitive standards” to perform work

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Ms. Gross submitted medical Records from Families, Inc., for June 4, 2011
through September 6, 2012, and a Mental Residual Functional Capacity Questionnaire
from Olimpia Rosario, M.D. dated October 30, 2012. (SSA record at 7)
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in a number of areas. (Id. at 766, 768) Dr. Rosario did not offer explanations for her
conclusion, however, and there is no indication she performed any testing on Ms. Gross.
(Id. at 768, 769, 771) According to the record, before completing the Questionnaire, Dr.
Rosario saw Ms. Gross on three occasions – December 20, 2011, March 20, 2012, and
June 26, 2012 – for medication checks. Each appointment lasted fifteen minutes.6 Dr.
Rosario’s minimal contact with Ms. Gross, along with the check-the-box format,
incompleteness, and generality of her assessment limits the Questionnaire’s evidentiary
value. Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (citing Piepgras v.
Chater, 76 F.3d 233, 236 (8th Cir. 1996)).
Ms. Gross complains that the ALJ erred in finding she was capable of performing
a limited range of light, unskilled work. More specifically, she claims that, in making his
RFC assessment, the ALJ underestimated the severity of her mental impairments and
failed to account for her low Global Assessment of Functioning (“GAF”) scores and
diabetic neuropathy.
The ALJ must determine a claimant’s residual functional capacity based on all
relevant evidence, including medical records, observations of treating physicians and
others, and the claimant’s own descriptions of her limitations. Tellez v. Barnhart, 403
F.3d 953, 957 (8th Cir. 2005); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003).

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Dr. Rosario also signed-off on Ms. Gross’s treatment plans. (Id. at 621, 643, 652,

704)
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The ALJ narratively discussed the medical evidence, Ms. Gross’s subjective
complaints, and other evidence. (Id. at 15-26) He considered Ms. Gross’s mental
functioning in activities of daily living; social functioning; concentration persistence, and
pace; and episodes of decompensation. (Id. at 24) He discussed the treatment records
from Families, Inc., the 2010 and 2011 consultative examinations performed by Nancy A.
Bunting, Ph.D., the opinion of State agency consultant Brad F. Williams, Ph.D., and the
neuropsychological evaluation of Vann A. Smith, Ph.D.
The ALJ considered the fact that Ms. Gross cared for her own personal needs as
well as those of her disabled husband, her partially paralyzed mother, her three children,
and family pets; performed household chores such as cleaning, laundry, and cooking;
cared for her two-year-old nephew five days per week; and read, watched television, used
a computer, and played World of Warcraft up to eight hours per day. (Id. at 24, 97-101,
116, 347)
The ALJ recognized that Ms. Gross’s impairments created limitations and he
incorporated those limitations into his residual functional capacity finding. (Id. at 15-26)
As noted, Ms. Gross complains that the ALJ did not properly consider her low
GAF scores. The Diagnostic and Statistical Manual of Mental Disorders (4th ed.)
(“DSM–IV”), published by the American Psychiatric Association, states that a GAF score
of 41 to 50 generally indicates serious impairment in social, occupational, or school
functioning. (DSM–IV 32) The DSM–IV, however, is a classification of mental disorders

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that was developed for use in clinical, educational, and research settings. Specific
diagnostic criteria included in the DSM–IV are meant to serve as guidelines to augment
clinical judgment and are not meant to be used in a cookbook fashion. A GAF score does
not have a direct correlation to the severity requirements in mental disorders listings. 65
Fed.Reg. 50746, 50764–65 (2000).
Here, the ALJ acknowledged Ms. Gross’s GAF scores but explained why they
were not controlling. (Id. 16-17) He considered the scores, along with other evidence in
the record. He did not err by not giving the scores greater weight than he did. See Jones
v. Astrue, 619 F.3d 963, 972-74 (8th Cir. 2010) (ALJ may afford greater weight to
medical evidence and testimony than to GAF scores when the evidence requires it).
Finally, Ms. Gross complains that the ALJ’s RFC assessment is not consistent with
her limitations caused by diabetic neuropathy. Ms. Gross has not pointed to any evidence
in the record to suggest her diabetic neuropathy limited her from performing light work
further limited to only occasional climbing, balancing, stooping, bending, crouching,
kneeling, and crawling. Ms. Gross did not describe physical limitations that would
prevent her from performing light work; nor did she report experiencing pain. (Id. at 102,
105) Further , Ms. Gross has not been prescribed extensive pain medication. (Id. at 22)
Even after considering Dr. Rosario’s report along with the other evidence in the
record, a fair reading of the ALJ’s opinion reveals no error in his determination of Ms.
Gross’s residual functional capacity.

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Finally, Ms. Gross complains that the ALJ erred by not finding her personality
disorder and anxiety disorder were severe impairments. Ms. Gross’s complaint provides
no basis for relief.
The claimant bears the burden at step two of demonstrating the existence of an
impairment that significantly limits her ability to do basic work activity. 20 C.F.R.
§§ 404.1520(c), 416.920(c); Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 007) Ms. Gross
has not pointed to any evidence in the record to support her contention that her
personality disorder and anxiety disorder rose to the level of a severe impairment.
Additionally, because the ALJ found other severe impairments, he proceeded to
step three where he considered all of the medical evidence and all of Ms. Gross’s
impairments. Bozven v. Yuckert, 482 U.S. 137, 156, 107 S.Ct. 2287, 96 L.Ed.2d 119
(1987) (O’Connor, J., concurring). The ALJ discussed Ms. Gross’s mental health
counseling records as well as the assessments of Dr. Bunting and Dr. Smith. The ALJ
discussed the treating source records from Families, Inc., including the findings of
anxiety and personality disorder. The ALJ’s explanation shows that he considered all of
the medical evidence. Accordingly, even if Ms. Gross’s personality disorder and anxiety
disorder were severe, no harm came from the ALJ’s finding they were non-severe at step
two. See Swartz v. Barnhart, 188 F. App'x 361, 368 (6th Cir. 2006) (where ALJ finds at
least one “severe” impairment and proceeds to assess claimant’s RFC based on all alleged

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impairments, any error in failing to identify particular impairment as “severe” at step two
is harmless).
It is not the task of this Court to review the evidence and make an independent
decision. Neither is it to reverse the decision of the ALJ because there is evidence in the
record which would support a different outcome. The test is whether there is substantial
evidence, on the record as a whole, to support the ALJ’s decision. Van Vickle v. Astrue,
539 F.3d 825, 828 (8th Cir. 2008).
The Court has reviewed the entire record, including the briefs, the ALJ’s decision,
the transcript of the hearing, and the medical and other evidence. There is ample
evidence on the record as a whole that “a reasonable mind might accept as adequate to
support [the] conclusion” of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401.
The Commissioner’s decision is not based on legal error.
The final determination of the Commissioner is AFFIRMED, and Ms. Gross’s
complaint is hereby dismissed with prejudice, this 11th day of December, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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