Poynter v. Social Security Administration

Filing 12

MEMORANDUM OPINION AND ORDER: Mr. Poynter's appeal is DENIED, and the Clerk of Court is directed to close the case. Signed by Magistrate Judge Beth Deere on 6/2/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TIMOTHY K. POYNTER
V.

PLAINTIFF

CASE NO. 4:13CV00079-JTR

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Timothy K. Poynter appeals the final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying his claims for Disability
Insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for
Supplemental Security Income (“SSI”) benefits under Title XVI of the Act. For reasons
set out below, the decision of the Commissioner is AFFIRMED.
I.

Background
Mr. Poynter protectively filed for DIB and SSI benefits due to lupus anticoagulant

with an onset date of November 1, 2008. (SSA Record at 75, 79, 87, 89, 133-35, 138-41)
Mr. Poynter’s claims were denied initially and upon reconsideration. (Id. at 75-81, 87-91)
At Mr. Poynter’s request, an Administrative Law Judge (“ALJ”) held a hearing on
October 6, 2011, at which Mr. Poynter appeared with his lawyer. (Id. at pp. 24-70) At
the hearing, the ALJ heard testimony from Mr. Poynter and a vocational expert (“VE”).
(Id.) The ALJ issued a decision on March 30, 2012, finding that Mr. Poynter was not
disabled under the Act. (Id. at 8-19)
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Mr. Poynter filed a request for review with the Appeals Council which was denied,
making the ALJ’s decision the Commissioner’s final decision. (Id. at 1-3)
Mr. Poynter, who was 30 years old at the time of the hearing, had a high school
equivalence certificate and past relevant work experience as a cashier, pizza cook,
dishwasher, hand packager, forklift driver, shipping and receiving clerk, and yard truck
operator. (Id. at 17, 30-39)
II.

Decision of the Administrative Law Judge1
The ALJ found that Mr. Poynter had not engaged in substantial gainful activity

since November 1, 2008, and that he had the following severe impairments: lupus
anticoagulant, recurrent deep vein thrombosis, history of right femur fracture status post
open reduction and internal fixation, major depressive disorder, and generalized anxiety
disorder. (Id. at 10-11) The ALJ found, however, that Mr. Poynter did not have an
impairment or combination of impairments meeting or equaling an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1.2 (Id. at 11-13)

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The ALJ followed the required sequential analysis to determine: (1) whether the
claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; and (4) if not, whether the impairment (or
combination of impairments) prevented the claimant from performing past relevant work;
and (5) if so, whether the impairment (or combination of impairments) prevented the
claimant from performing any other jobs available in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(a)-(g) 416.920(a)-(g) (2005).
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20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and
416.926.
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According to the ALJ, Mr. Poynter had the residual functional capacity (“RFC”) to
perform sedentary work, but could not climb, kneel, crouch, or crawl and could only
occasionally balance and stoop. Additionally, the ALJ found that Mr. Poynter should be
limited to work where interpersonal contact is incidental to the work performed and
where the complexity of tasks is learned and performed by rote, with few variables and
little judgment required, and supervision required is simple, direct, and concrete. (Id. at
13) The VE testified that an individual with those limitations could perform the job of
patcher. (Id. at 18)
After considering all of the evidence in the record, including the VE’s testimony
and other evidence, the ALJ determined that Mr. Poynter could perform a significant
number of other jobs existing in the national economy and found, therefore, that Mr.
Poynter was not disabled. (Id. at 13-18)
III.

Analysis
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005)).

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When looking at the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
B.

Step 3

Mr. Poynter complains that the ALJ erred by failing to discuss his Global
Assessment of Functioning (“GAF”) scores of 403 and 504 when performing the Special
Technique to determine whether he met the requirements of listing 12.04 and 12.06. Mr.
Poynter argues the GAF scores undermine the ALJ’s finding that he did not meet a
listing. This argument lacks merit for several reasons.
First, the ALJ’s failure to discuss the scores when making his finding that Mr.
Poynter did not meet a listing is not reversible error because GAF scores are not
dispositive for determining whether he had the limitations set forth in the “B” and “C”
criteria of Listings 12.04 and 12.06. As the Eighth Circuit has recognized, a claimant’s

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The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM–IV),
published by the American Psychiatric Association, states that a GAF of 31 to 40
indicates some impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood.
(DSM–IV 32).
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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)
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GAF score may have little or no bearing on the claimant’s social and occupational
functioning. Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010).
Moreover, mental health professionals no longer use GAF scores. The GAF was
dropped from the Diagnostic and Statistical Manual of Mental Disorders due to the
GAF’s “conceptual lack of clarity (i.e. including symptoms, suicide risk, and disabilities
in its descriptors) and questionable psychometrics in routine practice.” Diagnostic and
Statistical Manual of Mental Disorders, 16 (5th ed.) Am. Psychiatric Ass'n 2013.
Second, here, the ALJ carefully considered the “entire record” when considering
whether Mr. Poynter’s mental impairments met listings 12.04 and 12.06. (SSA record at
11-13) There is no evidence that Mr. Poynter sought treatment for depression between
November 2008, his alleged onset date, and September, 2011, a month before the
administrative hearing or that he sought further treatment after December, 2011. Notably,
the record contains only three GAF scores that were assessed on two separate dates
during the four-month span when Mr. Poynter sought treatment for his depression. (Id. at
326, 340, 348) Accordingly, this case does not present a long history of GAF scores that
would support reliance on the scores over the rest of the records.
Third, the ALJ specifically referred to the records from Mr. Poynter’s meeting
with counselor Ashley Donaldson, as well as the treatment notes of Jeremy Thompson,
M.D., which included the GAF scores, when discussing whether Mr. Poynter met the
criterial of listings 12.04 and 12.06. (Id. at 11) Additionally, the ALJ referenced the

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consulting report of Nancy Toombs, Ph.D. (Id. at 11-12) The opinions of Dr. Toombs
and Dr. Thompson support the ALJ’s determination that Mr. Poynter did not have an
impairment that met a listing. (Id. at 339-41, 343-44, 346-47) The ALJ may afford
greater weight to medical evidence and testimony rather than to GAF scores. See Jones v.
Astrue, 619 F.3d 963, 974 (8th Cir. 2010).
Finally, Mr. Poynter has not shown that, given all of the evidence in the record, the
ALJ would have come to a different conclusion about his meeting the criteria of
paragraphs “B” and “C” of the Listings if the ALJ had specifically discussed the GAF
scores. The ALJ’s failure to discuss the scores was not reversible error. See Byes v.
Astrue, 687 F.3d 913, 917 (8th Cir. 2012)
C.

Residual Functional Capacity

Mr. Poynter complains that the ALJ’s mental RFC assessment is not supported by
the medical opinion evidence, but rather, is based on his rejection of the medical evidence
in the record. (#10 at p. 9) Mr. Poynter, again, relies heavily on the two GAF scores of
40 and 50 to argue that he was more limited than the ALJ found in his RFC assessment.
(#10 at p. 11) As explained, however, the GAF scores are not determinative.
Here, there is substantial evidence to support the ALJ’s mental RFC assessment.
Dr. Thompson, the treating psychiatrist, assessed Mr. Poynter twice in a three-month

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span.5 On examination on September 16, 2011, Ashley Donaldson, LAC, noted that Mr.
Poynter was oriented to person, place, situation and time; his recent memory was intact;
his intelligence was average; and he was not at risk for harming himself or others. (Id. at
330, 352)6 Although he claimed to push people away, he had been married for four or
five years and had two children that he helped care for. (Id. 331-32, 334, 354, 355-56)
He was diagnosed with major depressive disorder, assigned a GAF score of 40 and was
prescribed individual therapy and medication. (Id. at 334-35, 356-57) On September 21,
2011, Dr. Thompson signed off on Mr. Poynter’s treatment plan. (Id. at 326-28)7
When Mr. Poynter was evaluated by Dr. Thompson in October, 2011, he was
noted to be depressed, anxious, and irritable, but his thought process was judged to be
intact; his social skills were adequate; he was cooperative; his sleep was normal; he had
no hallucinations; and he was motivated for treatment. (Id. at 347) He was again

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It is unclear from the records whether Dr. Thompson actually examined Mr.
Poynter in September, 2011, or merely signed off on the master treatment plan after Mr.
Poynter met with counselor Ashley Donaldson. (SSA record at 326-28, 349-51)
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Ms. Donaldson’s notes from her meeting with Mr. Poynter on September 16,
2011, appear in the record twice. These records first appear with the heading Day Spring
Behavioral Health Services at record pages 329-335, and then appear again with the
heading Alternative Opportunities, Inc. at record pages 352-57.
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Mr. Poynter’s treatment plan also appears in the record twice. The plan first
appears with the heading Day Spring Behavioral Health Services at record pages 326-28,
and then appears again with the heading Alternative Opportunities, Inc. at record pages
349-51.
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diagnosed with major depressive disorder and was assessed with a GAF score of 50. (Id.
at 347-48)
The ALJ arranged for Mr. Poynter to have a consultative psychological
examination. After examining Mr. Poynter, consulting examiner, Nancy Toombs, Ph.D.,
opined that Mr. Poynter had mild limitation in his ability to understand and remember
simple instructions, carry out simple instructions, and make judgments on simple workrelated decisions; and moderate limitation in his ability to understand and remember
complex instructions, carry out complex instructions, make judgments on complex workrelated decisions, interact appropriately with the public, supervisors, and co-workers, and
respond appropriately to changes in a routine work setting. (Id. at 343) Dr. Toombs’s
opinion supports the ALJ’s finding that Mr. Poynter is capable of unskilled work.
D.

Credibility

Finally, Mr. Pointer claims that the ALJ improperly relied on lack of compliance
with treatment to impugn credibility. More specifically, Mr. Poynter claims that his
noncompliance with medication should be excused because he was unable to afford his
prescribed medication. This argument lacks merit.
Mr. Poynter’s treating physician, A. Dale Barton, M.D., repeatedly noted that Mr.
Poynter was non-compliant with taking his medications (id. at 250, 252, 266, 271, 272,
273), and none of the treatment records indicate that Mr. Poynter complained to Dr.
Barton about an inability to pay (id. at 272-73, 252, 271, 266). During a visit to St.

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Mary’s Regional Medical Center in September, 2010, Mr. Poynter stated that he took his
medication, Coumadin, “whenever I feel like I should take them.” (Id. at 306) Similarly,
in October, 2010, Mr. Poynter stated to consulting examiner John C. Dobbs, M.D., that he
took his Coumadin as he “sees fit.” (Id. at 285)
Mr. Poynter’s assertion that he could not afford to take his medications is also
called into question by his admission that could afford to smoke a pack of cigarettes per
day. (Id. 252, 256, 275, 306, 310, 338) Further, Mr. Poynter’s free treatment at River
Valley Christian Clinic in 2011 indicates, that had he sought treatment and medication
from a low cost or free medical clinic sooner, it would have been available. (Id. at 31420)
Additionally, consulting physical examiner Dr. Dobbs noted that Mr. Poynter was
“uncooperative” during his exam. (Id. at 285-290) And results of the Computerized
Assessment of Response Bias test administered by Dr. Toombs indicated conscious or
unconscious exaggeration that called into question the results of Dr. Toombs’s
examination of Mr. Poynter. The ALJ did not err in finding Mr. Poynter’s credibility
lacking. See Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005)(failure to follow a
recommended course of treatment weighs against a claimant's credibility).
E.

Step 5

At the hearing, the VE testified that a person with Mr. Poynter’s level of physical
and mental impairment could perform the job of patcher, and, although a sit/stand option

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or a need to elevate his feet above waist-level would reduce the number of jobs available,
he could still perform the job. (Id. at 64-63) The VE testified his testimony was
consistent with the Dictionary of Occupational Titles (“DOT”).
Mr. Poynter argues that the job of patcher requires reasoning skills that exceed his
assessed RFC. (#10 at p. 13) Unskilled work, however, corresponds to an SVP level of
1–2, and the DOT listing for the job of patcher indicates the SVP level for the job is 2.
Dictionary of Occupational Titles, 723.687-010, 1991 WL 679524; SSR 00–4p, 2000 WL
1898704, *3 (Dec. 4, 2000)(“DOT lists maximum requirements of occupations as
generally performed, not the range of requirements of a particular job as it is performed in
specific settings”); Moore v. Astrue, 623 F.3d 599, 604–05 (8th Cir. 2010)(“there is no
direct conflict between ‘carrying out simple job instructions' for ‘simple, routine and
repetitive work activity,’ as in the hypothetical, and the vocational expert's identification
of occupations involving instructions that, while potentially detailed, are not complicated
or intricate” ).
Mr. Poynter also argues that the ALJ should have included a need to elevate his leg
to his chest as a limitation to his RFC; however, Dale Barton, M.D., stated that Mr.
Poynter could perform any job except ones that required prolonged standing and bending.
(Id. at 266) His assessment supports the ALJ’s hypothetical and his conclusion at step 5.
The ALJ did not err in relying on the VE’s testimony.

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IV.

Conclusion
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.
Accordingly, Mr. Poynter’s appeal is DENIED, and the Clerk of Court is directed
to close the case.
IT IS SO ORDERED, this 2nd day of June, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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