Rainwater v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on December 28, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOSEPH A. RAINWATER
Civil No. 10-2155
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Joseph Rainwater, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (Commissioner)
denying his claim for a period of disability, disability insurance benefits (“DIB”), and supplemental
security income (“SSI”) under Titles II and XVI of the Social Security Act (hereinafter “the Act”),
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court must determine
whether there is substantial evidence in the administrative record to support the Commissioner’s
decision. See 42 U.S.C. § 405(g).
The plaintiff filed his applications for DIB and SSI on December 11, 2006, alleging an
onset date of June 15, 2004, due to anxiety; depression; paranoid schizophrenia; antisocial
personality disorder; arthritis; hypertension; problems with his right lower extremity; and,
breathing problems. Tr. 33, 37, 39, 117-127, 161-172, 181-182, 204-206, 207-208.
An administrative hearing was held on November 24, 2008. Tr. 22-59. Plaintiff was
present and represented by counsel. At this time, plaintiff was 33 years of age and possessed the
equivalent of a high school education. Tr. 27-28. He had past relevant work (“PRW”) experience
as a forklift operator, draw bench operator helper, and poultry clean up worker. Tr. 55, 144-159,
On November 19, 2008, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s osteoarthritis and mood disorder did not meet or equal any Appendix 1 listing.
Tr. 69. The ALJ determined that plaintiff maintained the residual functional capacity (“RFC”) to
perform medium level, unskilled work involving interpersonal contact incidental to the work
performed. Tr. 71-74. With the assistance of a vocational expert, the ALJ then found that plaintiff
could perform work as a grounds keeper, dishwasher, and material handler. Tr. 74-75.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied on
March 12, 2010. Tr. 1-3. Subsequently, plaintiff filed this action. ECF No. 1. This case is before
the undersigned by consent of the parties. Both parties have filed appeal briefs, and the case is
now ready for decision. ECF No. 12, 13.
This court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider evidence
in the record that fairly detracts from that decision.” Id. As long as there is substantial evidence
in the record to support the Commissioner’s decision, the court may not reverse the decision
simply because substantial evidence exists in the record to support a contrary outcome, or because
the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001). If we find it possible “to draw two inconsistent positions from the evidence, and one of
those positions represents the Secretary’s findings, we must affirm the decision of the Secretary.”
Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3),
1382(3)(c). A plaintiff must show that his disability, not simply his impairment, has lasted for at
least twelve consecutive months.
The Evaluation Process:
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has ehngaged in substantial
gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his or her age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only
if the final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
Records dated prior to Plaintiff’s alleged onset date indicate he had been treated for back
pain, muscle spasms in the lumbosacral spine, pain between his shoulders, pharyngitis, bronchitis,
left ankle arthritis, weakness, epididymitis, inguinal adenopathy, hematuria, flu, dysphagia, and
depression/anxiety. Tr. 251-281, 313-340. An x-ray of his lumbar spine dated March 2004 was
negative. Tr. 331. Plaintiff underwent an esophagogastroduodenoscopy (“EGD”) in January
2004, which revealed grade III erosive esophagitis, punctuated gastric ulcers, duodenitis, and
atrophic gastritis. Tr. 337. He was placed on Prevacid. X-rays of his chest and thoracic spine
conducted in May 2004 revealed no abnormalities. Tr. 261, 330.
On February 7, 2005, Plaintiff complained of left ankle pain, degenerative bone disease,
weakness, nausea, vomiting, and diarrhea. Tr. 248-249. He felt he had an upper respiratory
infection. Some minor swelling was noted in his ankle, but no other abnormalities were evident.
Dr. Stephanie Russell diagnosed him with degenerative joint disease of the left ankle by history
and an upper respiratory infection. She prescribed Naproxen. Tr. 249.
On July 24, 2006, Plaintiff sought emergency treatment for a boil on his upper right
buttock. Tr. 243-246. Multiple boils were also noted on his legs. Plaintiff felt weak and reported
a history of osteoarthritis. He was placed on MRSA protocol, as Dr. Joseph Kradel believed this
to most likely be MRSA. The doctor voiced some concern as to whether Plaintiff could afford the
medication, given that he had placed him “off work.”1 Tr. 243-246.
On December 20, 2006, Plaintiff was treated for a sore throat, left posterior ear pain, a
cough, and general aches and pains. Tr. 240. No wheezes, rales, or rubs were noted. An
examination revealed enlarged tonsils. Dr. Russell diagnosed him with an upper respiratory
infection. Tr. 240.
At this time, Plaintiff was reportedly working at Tyson’s. Tr. 243.
On January 11, 2007, Plaintiff sought treatment for complaints he believed to be associated
with either lung, brain, or bone cancer. Tr. 239. By report, his throat hurt, he had a cough and saw
blue spots when he coughed, his left ankle hurt, his left knee was popping, and he had a history
of polysubstance abuse. Plaintiff also reported a history of rhumatoid arthritis. The doctor noted
paranoid thoughts and diagnosed him with a smokers cough. He was advised to quit smoking and
seek a mental health evaluation. Tr. 239.
On January 16, 2007, Plaintiff complained of ankle pain with swelling, a pop in his knee,
a recurrent sore throat, and a cough. Tr. 238. The doctor noted multiple somatic complaints along
with flight of ideas. Plaintiff was diagnosed with increased blood pressure, abnormal thinking,
pharyngitis, and pain in his left ankle. An x-ray of his left ankle was ordered, Plaintiff was placed
in an ACE bandage, and he was prescribed Allegra, Nasacort, and Piroxicam. He was advised to
discontinue the Naprosyn. Tr. 238. The x-ray of his left ankle proved to be negative. Tr. 241.
No fracture lines, significant ankle effusion, or soft tissue swelling was noted. Tr. 241.
On January 26, 2007, Plaintiff sought emergency treatment for a cough and congestion.
Tr. 285-287. He also reported a sore throat and pain in his thoracic spine when coughing. An
examination revealed some productive sputum, mild erythema in the throat without exudate, and
generalized expiratory rhonchi without rales or wheezes. A chest x-ray was essentially normal,
revealing on a subtle area towards the right costophrenic angle that could represent some slight
infiltrate. However, given that it was symmetrical with the other side, Dr. William King felt it was
likely a soft tissue shadow. He diagnosed Plaintiff with acute bronchitis and prescribed
Doxycycline and Hycotuss expectorant. Plaintiff was again advised to quit smoking. Tr. 286.
On March 21, 2007, Plaintiff’s cough continued, and he was convinced he had cancer. Tr.
237. Dr. Russell noted he was a smoker and had been treated for bronchitis in January 2007.
Plaintiff stated that he had cut back to ½ package of cigarettes per day. Dr. Russell noted paranoid
thoughts and diagnosed him with abnormal thinking.
She recommended a psychological
evaluation, but noted “Plaintiff doesn’t want to hear that.” Tr. 237.
On April 19, 2007, Plaintiff underwent a diagnostic interview with Charles Pennington at
Western Arkansas Counseling and Guidance Center (“WACGC”). Tr. 343-346. He complained
of persistent depression, although his mood and affect appeared normal. Mr. Pennington noted that
he had been treating Plaintiff for several months at the Next Step Day Room. Plaintiff reported
no history of inpatient psychiatric treatment, and had only tried Zoloft on one previous occasion
to treat his depression. Although he had an extensive history of drug and inhalant abuse, Plaintiff
denied any current use of illicit drugs or alcohol and did not appear to be under the influence of
any such substances. Mr. Pennington stated that he had agreed to treat Plaintiff as long as he paid
for his sessions and agreed to routine drug testing. He did voice some concern that Plaintiff could
be drug-seeking from the facility, and that it would be up to his doctor or nurse practitioner to
determine whether any other medications were appropriate. At this time, Plaintiff was working
at Max Steal on Sundays and was seeking additional hours. Mr. Pennington diagnosed him with
depressive disorder not otherwise specified, inhalant-induced anxiety disorder, cannabis
dependence, cocaine dependence, morphine dependence, nicotine dependence, and rule out
malingering. He then assessed him with a global assessment of functioning (“GAF”) score of 60.
Mr. Pennington recommended individual therapy and medication management.
On May 21, 2007, Plaintiff met with Mr. Pennington. Tr. 392-393. He indicated that he
was living with his mother and could not work. However, Plaintiff also stated that he was working
at Max Steel on the weekends. The frustration associated with living with his mother and having
no money reportedly stressed him out. Mr. Pennington found him to be alert and cooperative with
a somewhat expansive and antagonistic mood. Plaintiff remained convinced he suffered from
bipolar and schizophrenia. However, he had recently met a woman, with whom he had become
friends. Tr. 392-393.
On May 22, 2007, Plaintiff was treated at GSC for recurrent bronchitis. Tr. 236. He was
out of Albuterol. Over the previous two weeks, his cough had become productive. Plaintiff also
complained of shortness of breath. It was noted that he had problems with anxiety and depression,
was seeing a psychiatrist, and had applied for disability. Plaintiff was diagnosed with acute
bronchitis and asthma and prescribed Doxycycline. Tr. 236.
On May 31, 2007, Plaintiff was referred to the emergency room for treatment after
experiencing a syncopal spell and a racing heart rate. Tr. 288-291. He was noted to have a history
of drug abuse routinely causing these symptoms. However, Plaintiff stated that he had been clean
for one month. He was also noted the be depressed and suffering from a headache. An
examination revealed a small contusion above his right eyebrow, a full range of motion in his neck,
and no cyanosis, clubbing, or edema. A CT scan of his head was negative, showing only mild
atrophy. A chest x-ray was also within normal limits, evidencing no active infiltrates, a normal
heart size, and well expanded lungs. Dr. David Dias diagnosed Plaintiff with hypertension, a
history of drug abuse, and depression. He prescribed Norvasc, and advised Plaintiff to follow up
with his primary care physician. Tr. 289.
On June 6, 2007, records indicate Plaintiff had become hypertensive a WACGC and was
sent to the emergency room. Tr. 386. He had been admitted to the hospital for cardiac monitoring
and testing. Plaintiff indicated that the Norvasc they prescribed was too expensive for him to fill.
A review of his treatment records indicated that Plaintiff had primarily been normotensive when
evaluated by his primary care physicians at GSC. Plaintiff was smoking eighteen cigarettes per
day, drinking six to eight Cokes daily, and complained of swelling in his feet. An examination
revealed a heavy habitus, poor dental hygiene, poor overall hygiene, an occasional irregular
heartbeat, fair femoral pulses, weak pedal pulses, and some edema of the feet. It appears there was
some question regarding his most recent blood work. The doctor indicated that the blood sample
was diluted, and noted the possibility of water intoxication. He prescribed Atenolol and advised
Plaintiff to decrease his intake of Coke and water. Tr. 386.
On June 7, 2007, Plaintiff presented for a psychiatric evaluation with Dr. Pearl Beguesse,
a staff psychiatrist at WACGC. Tr. 348-352. He continued to report symptoms of depression,
sadness, crying spells, poor sleep, decreased appetite, lack of interest in doing things, hopelessness,
helplessness, worthlessness, and suicidal thoughts. Plaintiff reported a childhood history of courtordered treatment for behavioral problems. However, he denied psychotic or manic symptoms,
as well as prior hospitalization for psychiatric issues. Plaintiff did report numerous suicide
attempts by overdose on drugs. His history included tobacco abuse, alcohol abuse, cannabis use,
cocaine use, methamphetamine use, and prescription drug abuse. Plaintiff stated he had not used
any alcohol or drugs in over three months. Dr. Beguesse noted good grooming and hygiene.
Plaintiff was cooperative, pleasant, maintained good eye contact, had normal speech, a “pretty
good” mood, a broad and non-congruent affect, logical and goal-directed thoughts, full orientation,
and good judgment and insight. Hallucinations and delusions were denied. Dr. Beguess diagnosed
Plaintiff with depressive disorder not otherwise specified, nicotine dependence, cannabis
dependence in early full remission, methamphetamine dependence in sustained full remission,
cocaine dependence in sustained full remission, and personality disorder not otherwise specified.
She assessed Plaintiff with a GAF of 50 and prescribed Fluoxetine to help his symptoms. Tr. 348352.
On June 18, 2007, Plaintiff underwent a mental diagnostic evaluation with Dr. Kathleen
Kralik. Tr. 292-300. Plaintiff alleged problems associated with antisocial personality disorder,
paranoid schizophrenia, depression, fatigue, chronic pain. Dr. Kralik noted that he seemed very
invested in diagnostic labels. Plaintiff admitted researching psychiatric conditions, and indicated
that his reference to paranoid schizophrenia was the result of an online questionnaire for
schizophrenia. However, throughout the exam, Plaintiff brought up no symptoms suggestive of
psychosis or schizophrenia. Records reveal no medications prescribed to treat psychotic-like
symptoms and Dr. Kralik noted no apparent distress or behavior suggestive of chronic mental
illness of psychotic proportions. When asked if there were any mental reasons he could not work,
he stated that he believed he had mental defects. Upon further probing, Plaintiff reproted that he
felt he was bipolar and “definitely schizophrenic.” Plaintiff stated that he did not like people, felt
scared all of the time, was nervous a lot, slept odd hours, and was consistently tired. Tr. 292-300.
Plaintiff denied any current use of drugs or involvement in illegal activity with a “subtle
smirk,” leading Dr. Kralik to believe there might be some reality base to his fears regarding his
safety. She noted that his alleged symptoms seemed consistent with alcohol and
methamphetamine-induced psychotic-like symptoms. He seemed genuine in his report of
depression, though his report of this and fears of passing out seemed more along the lines of an
adjustment disorder, more so than a full blow mood disorder. Most of his other allegations seemed
either associated with medical issues, not credible, and/or not described in any manner suggesting
they prohibited employment. Dr. Kralik opined that the timing of his application for benefits also
seemed suspect. She stated that had his drug activities been continuing, this might explain his parttime work schedule (i.e., to privide access to his customers) and his concerns over lost income if
he was being more carefully monitored now by law enforcement. It was, however, her opinion that
he did qualify for a diagnosis of antisocial personality disorder. Dr. Kralik diagnosed Plaintiff with
polysubstance dependence, allegedly in full remission; adjustment disorder not otherwise specified
with mild to moderate impact on occupational functioning with the institution of Prozac; and,
antisocial personality disorder. She also assessed him with a GAF score of 51-60. Dr. Kralik
concluded that Plaintiff’s adaptive functioning/activities of daily living were somewhat impaired
secondary to his antisocial tendencies, his social functioning was somewhat impaired for
occupational purposes (manipulative and oftentimes not credible), his communication skills
adequate, his capacity to cope with the typical mental/cognitive demands was adequate, his ability
to attend and sustain concentration on basic tasks was adequate, his capacity to sustain persistence
in completing tasks was somewhat impaired due to motivational issues, and his capacity to
complete work-like tasks within an acceptable timeframe was somewhat impaired due to volitional
motivation issues. As for the validity of the exam, Dr. Kralik noted that Plaintiff’s vestiges of
intelligence with associated manipulative cognitive adeptness seemed much more prominent and
credible than most of his complaints regarding mental symptoms. It was unclear to what extent
exaggeration and/or malingering were reflected in his reports, however, even if his symptoms were
taken at face value, she noted that Plaintiff acknowledged that his mental symptoms did not
preclude occupational functioning. She also found him unable to manage funds without assistance,
due to his strong antisocial tendencies, implied interest in building bombs from what he had
learned on the internet, and extensive history of methamphetamine manufacture and polysubstance
trafficking and abuse. Tr. 292-300.
On June 27, 2007, a physician’s progress note indicated that Plaintiff was doing better with
fewer headaches and improved sleep. Tr. 385. Records indicate he sold his blood plasma weekly.
Plaintiff complained of “swelling,” and indicated that he needed medication refills. The doctor did
note some trace edema in his limbs. Plaintiff was diagnosed with mild hypertension and given
refills of Atenolol and Proventil. Tr. 385.
On August 9, 2007, Plaintiff was treated for a productive cough, possible fever, aching on
the right side, and back and chest pain. Tr. 383. Rales and wheezes were both evident upon
examination and did not clear with his cough. Tr. The doctor at GCS diagnosed him with possible
pneumonia. He was given Rocephin and Depo Medrol injections and prescribed Ibuprofen and
Keflex. Tr. 383.
On August 17, 2007, Plaintiff returned to Dr. Beguesse for medication management. Tr.
395-396. Plaintiff had been busy doing yard work, watching television, playing with his cats, and
seeing his girlfriend and children. He felt “kind of” depressed; had a broad, sad, and congruent
mood; normal speech; good eye contact; fair concentration; and, good judgment and insight. His
medication was noted to be effective for his targeted symptoms, and he was taking his medications
as prescribed. Dr. Beguesse added Trazadone to help him sleep and increased his Prozac to help
alleviate his depressive symptoms. Tr. 395-396.
On August 23, 2007, Plaintiff complained of a cough, possible fever, general aches, and
a sore throat. Tr. 382. Some wheezing was noted upon examination. The doctor at GSC
diagnosed Plaintiff with pharyngitis, a cough, and bronchitis. He then administered Rocephin and
DepoMedrol injections. Tr. 382.
On August 30, 2007, Plaintiff continued to experience problems with coughing, a sore
throat, general malaise, and sleeping difficulties. Tr. 381. The doctor at GSC noted symptoms
consistent with pharyngitis and a possible viral infection. Plaintiff was administered a Rocephin
injection and a chest x-ray was ordered. Tr. 381.
On August 31, 2007, Plaintiff reported no depressive or anxious symptoms. Tr. 394, 420.
He had reportedly been physically ill for several months, having been diagnosed with bronchitis
and pneumonia that was not responding to antibiotics. His session with Mr. Pennington focused
on the positive aspects of his life. He reported having helped his mother out recently by fixing her
car. Plaintiff stated that he had a good relationship with his mother, that he had a girlfriend he saw
on a daily basis, and that he played chess online. He also indicated that he was to begin working
at a junk yard the following week, so that he could afford to have the chest x-ray performed that
his doctor had recently recommended. Plaintiff was encouraged to focus on his strengths, be
thankful for what he had, and to focus on the future. Mr. Pennington noted that he was alert and
cooperative with an expansive mood and congruent affect. Tr. 394.
On December 28, 2007, Plaintiff complained of a cough and congestion. Tr. 415, 426.
He stated that he needed an updraft machine with routine treatments. An examination revealed
mild pharyngeal redness, a tender neck, and bilateral “harsh squeaks” in his lungs. The doctor
diagnosed him bronchitis versus pneumonia and prescribed Albuterol via nebulizer treatments and
Doxycycline. Tr. 415.
On February 13, 2008, Plaintiff’s lung was “less squeaky” than before. Tr. 414, 425. He
continued to exhibit a cough with yellow to brown colored sputum. The doctor diagnosed him
with chronic bronchitis, prescribed Atenolol, and ordered lab tests and a tuberculosis test. At this
time, Plaintiff was smoking one half of a package of cigarettes each day. Tr. 414.
On February 15, 2008, Plaintiff’s tuberculosis test was negative and his lungs were clear.
Tr. 413, 424. The doctor diagnosed him with chronic bronchitis and advised him to stop smoking.
Notes indicate that the doctor was awaiting some lab results, which ultimately revealed low levels
of protein, calcium, cholesterol, and LDL. The doctor noted this to be consistent with selling
plasma twice per week. Tr. 413.
On April 3, 2008, a CT of Plaintiff’s chest revealed no acute cardiopulmonary pathology.
Tr. 430. There was, however, some fatty infiltration of the liver. Tr. 430.
On August 15, 2008, Plaintiff underwent an intake assessment with Dr. Eva Beyga at
WACGC. Tr. 416-419. It had been approximately five months since his last appointment with
Dr. Beguesse and a year since his last psychotherapy session with Mr. Pennington. Dr. Beyga
noted that Plaintiff appeared to be withdrawn and depressed. He was unmotivated and appeared
to have very poor insight into his illness. However, he denied any recent drug use and reported
compliance with his prescribed medications. He endorsed symptoms of depression and occasional
auditory hallucinations. His affect was flat and inappropriate, his mood depressed, his thought
processes tangential, his thought content negative, and his judgment and insight impaired. Dr.
Beyga found no evidence of delusions, although Plaintiff’s mother was concerned he was having
Plaintiff’s remote and immediate memory appeared impaired, as he
experienced difficulty reporting his medical history. His intelligence appeared to be below average,
he exhibited cognitive deficits possibly consistent with chronic mental illness, his immediate
memory was impaired, and he experienced difficulty concentrating. Dr. Beyga diagnosed Plaintiff
with depressive disorder not otherwise specified, rule out major depressive disorder, psychotic
disorder not otherwise specified, polysubstance dependence in full sustained remission, inhalantinduced anxiety disorder, nicotine dependence, rule out malingering, and rule out antisocial
personality disorder. He also assessed Plaintiff with a GAF of 45. The doctor noted that Plaintiff
had continued to experience depressive symptoms, in spite of being compliant with his
medications. Therefore, he tapered Plaintiff off of the Prozac, prescribed Celexa, adjusted his
Respiridone dosage, and advised him to continue taking Trazodone. Plaintiff was neither
homicidal nor suicidal, but was given a hot-line number, should his condition deteriorate.
Psychotherapy was also to be reinstated via intensive day treatment. Tr. 416-419.
On August 21, 2008, Plaintiff presented for therapy stating that he was going to commit
suicide. Tr. 421. When asked about his plan, Plaintiff stated that his smoking had increased, so
he was going to die from smoking. He was alert and cooperative during the session. Although his
mood was depressed, Plaintiff’s presentation was normal. Mr. Pennington found him to be no
threat to himself or others. He also indicated that he could no longer treat Plaintiff, as it had come
to his attention that he was also treating Plaintiff’s mother, who had a different last name. Plaintiff
was in agreement to transfer to another therapist. Plaintiff indicated that his mother had asked him
to leave her home approximately one month prior. Mr. Pennington voiced his belief that Plaintiff’s
mother had wanted him to leave all along, and that Plaintiff was malingering. He listed the
following symptoms in support of his diagnosis: client has clearly exaggerated or invented
symptoms in pursuit of his goal to obtain disability, client seeks financial gain, client’s facial
features or affect have never reflected depression or any other psychiatric illness, client has
routinely indicated he wanted disability, client would ask symptoms of a disorder and then state
that he had those symptoms, client appeared rehearsed in each session as to his symptoms, client
never was able to give the same symptom consistently from one session to the next, client could
never relate a hallucination to a purpose, client consistently called attention to his illness of
psychosis, and client consistently attempted to take control of the interview and behaved in an
intimidating manner. Tr. 421-422.
On September 22, 2008, Plaintiff was treated by therapist Mark Williams. Tr. 423.
Plaintiff did not appear to object to his transfer to Mr. Williams and was very open about his
purported extreme depression. He made clear that he wanted Mr. Williams to know that he could
not work and had no support other than his mother. Plaintiff also complained about his back and
general malaise. He indicated that he and his girlfriend made money selling blood and aluminum
cans. Plaintiff did not seem to have any incentive to change his current course and did not respond
to suggestions. Tr. 423.
Plaintiff contends that the ALJ erred by failing to develop the record by ordering a
consultative mental evaluation and an evaluation of Plaintiff’s pulmonary impairments and
improperly determining Plaintiff could perform a range of medium level work. As each of these
issues are tied to the ALJ’s credibility determination in this case, we will begin our analysis with
an evaluation of Plaintiff’s subjective complaints.
Subjective Complaints/Severity of Impairments:
When evaluating the credibility of plaintiff’s subjective complaints the ALJ is required to
make an express credibility determination detailing his reasons for discrediting the testimony.
Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001).
The standard of evaluation is not whether plaintiff experiences pain, but if the pain alleged
is intense enough to cause functional limitations. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir.
2001) (holding that the real issue is not whether the plaintiff is experiencing pain, but how severe
and whether it prevents him from performing any kind of work).
An ALJ may not disregard a claimant’s subjective complaints solely because the objective
medical evidence does not fully support them. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984). The ALJ is required to take into account the following factors in evaluating the
credibility of a claimant's subjective complaints: (1) the claimant's daily activities; (2) the duration,
frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4)
precipitating and aggravating factors; and (5) functional restrictions. See id. The ALJ must make
express credibility determinations and set forth the inconsistencies in the record which cause him
to reject the plaintiff’s complaints. Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir.2004).
However, the ALJ need not explicitly discuss each Polaski factor. Strongson v. Barnhart, 361 F.3d
1066, 1072 (8th Cir.2004). The ALJ only need acknowledge and consider those factors before
discounting a claimant’s subjective complaints. Id. Even so, the ALJ may discount a claimant’s
subjective complaints if there are inconsistencies between the alleged impairments and the
evidence as a whole. Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001); Hogan v. Apfel, 239
F.3d 958, 961 (8th Cir. 2001).
Plaintiff claims disability due to the pain associated with arthritis in his back, neck,
shoulder, and ankle. Medical records do indicate that Plaintiff has been diagnosed with
arthritis/degenerative joint disease in his ankle. However, an x-ray of his ankle in September 2003
showed no pathology. A second x-ray performed in January 2008 was also negative. Tr. 238. See
Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (holding that lack of objective medical
evidence is a factor an ALJ may consider).
Plaintiff was also treated for arthritis in his back and neck. X-rays of his lumbar spine were
negative, showing no signs of spondylosis. In March 2004, Plaintiff was prescribed pain
medication and advised not to lift more than ten pounds for one week. Records reveal he was
treated on at least seven additional occasions for pain in his back, neck, foot, and ankle. Tr. 238,
However, repeat x-rays continued to show normal findings. Tr. 241. See id. And, Plaintiff’s
treatment has remained conservative in nature, consisting only of oral medications and injections.
See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993) (holding that treating physician’s
conservative treatment was inconsistent with plaintiff’s allegations of disabling pain).
Plaintiff has also reported limitations arising from chronic bronchitis, upper respiratory
infections, smoker’s cough, and shortness of breath. Tr. 236, 237, 239, 240, 285-287, 381, 382,
383, 414, 415, 425, 426, 430. The medical evidence of record does document consistent treatment
for these impairments. We note that Plaintiff was prescribed Albuterol to help alleviate his
symptoms, and was advised to stop smoking. Plaintiff did not heed this advice and continued to
smoke. In fact, at the hearing, he testified that he was still smoking. Tr. 38. And, as a result, he
continued to experience difficulties with bronchitis. Because medical records reflect that smoking
likely caused Plaintiff’s lung impairment, we find that his continued smoking amounts to a failure
to follow a prescribed course of remedial treatment. See Kisling v. Chater, 105 F.3d 1255, 1257
(8th Cir. 1997) (noting that a failure to follow prescribed treatment may be grounds for denying
an application for benefits).
Further, chest x-rays performed in May 2007 and again in April 2008 were negative. Tr.
288-291, 430. In April 2008, a CT scan of his chest also showed no acute cardiopulmonary
pathology. And, Plaintiff was treated conservatively via antibiotics and pain medications. See
Forte, 377 F.3d at 895. No significant hospital stays or significant loss of lung function has been
noted by any of his physicians. The record contains no reference to Plaintiff’s condition even
necessitating pulmonary function tests. In fact, we can find no evidence that Plaintiff even told his
doctors that his bronchitis was of such severity as to limit his ability to perform activities. There
is also no evidence to show that his doctors limited his activities based on his lung related
diagnoses. See Eichelberger v. Barnhart, 390 F.3d 584, (8th Cir. 2004) (holding fact that none
of doctors reported functional or work related limitations due to Plaintiff’s headaches created basis
for questioning her credibility). Instead, he continued to work part-time, perform yard work, and
play with his cats. Tr. 395-396.
The record also reveals that Plaintiff has been treated for mental impairments to include
depression, anxiety disorder, and malingering. Tr. 292-300, 343-346, 348-352. He reported
symptoms to include an irrational fear for his safety, nervousness, and a general dislike of others.
Plaintiff was apparently convinced he suffered from bipolar disorder and schizophrenia, which he
had self diagnosed via the internet. He was also very invested in diagnostic labels. Interestingly,
none of the doctors or therapists evaluating him found any evidence of psychosis or bipolar
However, the evidence does indicate that Plaintiff had a history of polysubstance abuse and
had been involved in both the manufacture and the distribution of methamphetamine. Although
he claimed to have been clean for several years, Dr. Kralik found many of his reported symptoms
to be consistent with methamphetamine-induced psychosis. See Pettit v. Apfel, 218 F.3d 901, 903
(8th Cir. 2000) (claimant has initial burden of showing that alcoholism or drug use is not material
to finding of disability; key factor is whether claimant would still be found disabled if she stopped
using drugs and alcohol). And, she opined that his continued involvement in illegal activity would
explain his irrational fears regarding his safety. Dr. Kralik also felt that his part-time work
schedule could be a cover, as it would allow for his continued involvement in the drug trade.
Although she did diagnose him with antisocial personality disorder, adjustment disorder, and
polysubstance abuse in alleged full remission, Dr. Kralik found most of his allegations to be either
associated with medical issues, not credible, or not described in any manner suggesting they
prohibited employment. His behavior simply did not suggest a chronic mental illness of psychotic
proportions. And, she indicated that the validity of her assessment was questionable, due to his
limited effort and questions regarding the possibility of malingering and/or exaggeration. Tr. 292.
Dr. Beyga and Mr. Pennington also voiced their suspicions that Plaintiff was malingering.
In August 2008, Dr. Beyga diagnosed Plaintiff with depressive disorder, psychotic disorder, and
questionable malingering. Tr. 416-419. Mr. Pennington also cited the following symptoms in
support of his diagnosis of malingering: client has clearly exaggerated or invented symptoms in
pursuit of his goal to obtain disability, client seeks financial gain, client’s facial features or affect
have never reflected depression or any other psychiatric illness, client has routinely indicated he
wanted disability, client would ask symptoms of a disorder and then state that he had those
symptoms, client appeared rehearsed in each session as to his symptoms, client never was able to
give the same symptom consistently from one session to the next, client could never relate a
hallucination to a purpose, client consistently called attention to his illness of psychosis, and client
consistently attempted to take control of the interview and behaved in an intimidating manner. Tr.
421-422. While Dr. Beguesse, did not mention malingering in her assessment of Plaintiff, we note
that she saw him on only two occasions, whereas Mr. Pennington provided him with
psychotherapy on at least four occasions. The record also reveals that Mr. Pennington had treated
him at the Day Room, although no formal records of those sessions were kept. As such, it seems
clear to the undersigned that Mr. Pennington would be in a better position to diagnose Plaintiff’s
condition than a doctor who saw him only twice for the sole purpose of assessing the effectiveness
of his medication therapy.
Dr. Kralik also stated that, even if his symptoms were taken at face value, Plaintiff admitted
that his mental impairments did not preclude occupational functioning. And, additional evidence,
including the fact that Plaintiff did continue to work part-time, reported the ability to get along well
enough with others to get jobs, managed to find a girlfriend and sustain a romantic relationship
with her, and was able to play chess both online and in person, in spite of these alleged symptoms,
weighs heavily against a finding of disability due to mental impairments.
Activities of Daily Living:
Plaintiff’s own reports concerning his daily activities also undermine his claim of disability.
On June 5, 2007, Plaintiff completed an adult function report, stating that he could care for his cat,
care for his personal hygiene, prepare simple meals daily, weed eat the yard (takes all day),
perform other yard work, perform light chores around the house, drive a car, go out alone
(although he prefers not to), shop in stores for groceries and cigarettes, count change, use a
checkbook/money orders, watch television, play chess online and locally, go to the Day Room on
Thursday mornings, and attend medical appointments. Tr. 173-178. A second function report was
completed on September 29, 2007. Tr. 209-214. At this time, he also reported that he had a
girlfriend, talked on the phone, and talked to people online. Tr. 34, 213, 394, 420. See Pena v.
Chater, 76 F.3d 906, 908 (8th Cir. 1996) (ability to care for one child, occasionally drive, and
sometimes go to the store); Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996) (ability to visit
neighbors, cook, do laundry, and attend church); Novotny v. Chater, 72 F.3d at 671 (ability to carry
out garbage, carry grocery bags, and drive); Johnston v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994)
(claimant’s ability to read, watch television, and drive indicated his pain did not interfere with his
ability to concentrate); Woolf v. Shalala, 3 F.3d 1210, 1213-1214 (8th Cir. 1993) (ability to live
alone, drive, grocery shop, and perform housework with some help from a neighbor). Further,
Plaintiff continued to work, albeit it part-time, through at least through August 2007. Tr. 243-246,
295, 343-346, 392-396. See 20 C.F.R. § 404.1571 (“Even if the work you have done was not
substantial gainful activity, it may show that you are able to do more work than you actually did.
We will consider all of the medical and vocational evidence in your file to determine whether or
not you have the ability to engage in substantial gainful activity.”); Goff v. Barnhart, 421 F.3d 785,
793 (8th Cir. 2005) (absent a showing of deterioration, working after the onset of an impairment
is some evidence of an ability to work). He also reported performing yard work and fixing his
mother’s car on at least two occasions. Tr. 46, 394, 420. Clearly, these activities are inconsistent
with his allegations of disability.
The ALJ’s RFC Assessment:
Plaintiff contends that the ALJ’s RFC assessment is not supported by substantial evidence.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1).
A disability claimant has the burden of establishing his RFC. See Masterson v. Barnhart, 363 F.3d
731, 737 (8th Cir.2004). “The ALJ determines a claimant’s RFC based on all relevant evidence
in the record, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or his limitations.” Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004); Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held that a
“claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704
(8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must be
supported by medical evidence that addresses the claimant’s ability to function in the workplace.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
The ALJ properly considered plaintiff’s subjective complaints, the objective medical
evidence, and the RFC assessments of the non-examining, consultative doctors. On June 25, 2007,
Dr. Steve Owens completed a physical RFC assessment. Tr. 301-308. After reviewing only
Plaintiff’s medical records, he concluded Plaintiff could perform a full range of medium level
work. Tr. 301-308.
On July 23, 2007, Dr. Kay Gale completed a psychiatric review technique form and a
mental RFC assessment. Tr. 363-380. She reviewed Plaintiff’s medical records and diagnosed
him with depressive disorder not otherwise specified, personality disorder not otherwise specified,
and rule out antisocial personality disorder. Dr. Gay concluded Plaintiff would be moderately
limited with regard to understanding, remembering, and carrying out detailed instructions;
maintaining attention and concentration for extended periods; completing a normal workday and
workweek without interruptions from psychologically based symptoms; and, performing at a
consistent pace without an unreasonable number and length of rest periods. She indicated Plaintiff
could perform work where the interpersonal contact was incidental to the work performed, the
complexity of the tasks was learned and performed by rote with few variables, the tasks required
little judgment, and the supervision required was simple, direct, and concrete. Dr. Gale also found
no episodes of decompensation. Tr. 363-380. This assessment was affirmed by Dr. Jerry
Henderson on November 30, 2007. Tr. 402.
We also have records from Plaintiff’s therapist, Mr. Pennington, the two psychiatrists at
WACGC who oversaw his medication management, and the evaluation of Dr. Kralik. Plaintiff
contends that the ALJ erred by relying on Mr. Pennington’s diagnosis of malingering, given the
GAF scores he was assessed with during the relevant time period. However, a particular GAF
score does not warrant a finding of disability. Instead, disability determinations should be made
on a case by case basis, considering all the evidence, not just a GAF result. Lozada v. Barnhart,
331 F.Supp. 2d 325, 334 (E.D. Penn. 2004); Purvis v. Commissioner, 57 F.Supp. 2d 1088, 1093
(D. Oregon 1999). Thus, if the GAF is inconsistent with overall evidence concerning Plaintiff’s
limitations, it is not entitled to controlling weight. Halverson v. Astrue, 600 F.3d 922, 931 (8th
In April 2007, Mr. Pennington assessed Plaintiff with a GAF of 60, which is indicative of
DISORDERS IV-TR 34 (4th ed. 2000). Dr. Beguesse assigned him with a GAF of 50 in June 2007,
indicating the presence of a serious impairment. Tr. 350. Id. Then in 2008, after being noncompliant with therapy for one year, Dr. Beyga assessed him with a GAF of 45, again indicative
of serious symptoms. Id.
We note, however, that Dr. Kralik also found that Plaintiff’s level of functioning was
somewhat impaired for occupational purposes in the following areas: activities of daily living,
social adequacy (communication and social functioning), capacity to sustain persistence in
completing tasks, and capacity to complete work-like tasks within an acceptable time frame. Tr.
Further, she determined that Plaintiff’s level of functioning was adequate for
occupational purposes in the areas of communication skills, capacity to cope with the typical
mental/cognitive demands of basic work-like tasks, and ability to attend and sustain concentration
on basic tasks. Tr. 299. And, of particular significance is the fact that Dr. Kralik found that even
if all of Plaintiff’s allegations were taken at face value, Plaintiff himself acknowledged that his
mental symptoms did not preclude occupational functioning. Tr. 300. The consultative examiner,
Dr. Gale, agreed and found that Plaintiff was able to perform work where interpersonal contact was
incidental to the work performed, where the complexity of tasks was learned and performed by rote
with few variables and little judgment, and where the supervision required was simple, direct, and
concrete. Tr. 377-380.
Accordingly, we conclude that the ALJ gave good reasons for discounting the low globalassessment-of-functioning ratings of Plaintiff’s treating mental health providers. See Hacker v.
Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (ALJ may elect in certain circumstances not to give
controlling weight to treating physician’s opinion, as record must be evaluated as whole; for
treating physician’s opinion to have controlling weight, it must be supported by medically
acceptable diagnostic techniques and not be inconsistent with other substantial evidence in case
record; physician’s own inconsistency may diminish or eliminate weight accorded to his opinion).
And, we find substantial evidence to support the ALJ’s mental RFC assessment. We can find no
error in the ALJ’s failure to order a second psychological evaluation with additional testing, as the
evidence before the ALJ provided ample information for him to make an informed decision
regarding Plaintiff’s RFC. See Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (holding “the
ALJ is required to order medical examinations and tests only if the medical records presented to
him do not give sufficient medical evidence to determine whether the claimant is disabled.”).
Likewise, for the reasons enumerated in the section addressing Plaintiff’s subjective
complaints, we also find substantial evidence to support the ALJ’s physical RFC assessment.
There are simply no medical records to indicate Plaintiff’s impairments were any more limiting.
His chronic bronchitis was obviously not severe enough to motivate him to stop smoking or to
interfere with his daily activities. It did not result in extensive hospitalization or treatment, and
there is no evidence that his alleged shortness of breath necessitated oxygen therapy. As such, we
do not see how further assessment of his lung impairment would change the outcome of this case.
Further, the combination of his various aches and pains, alleged lung restrictions, and
mental impairments did not prevent him from continuing to perform some part-time work, fix his
mother’s car, and do yard work. And, aside from one notation that Plaintiff would have weight
lifting restrictions for one week, his treating doctors never limited his physical activity. Given the
mental health professionals’ comments regarding the possibility of malingering, we simply can not
say the ALJ erred in his mental or physical RFC assessment in this case. There was ample
evidence upon which to base such an assessment, and his findings are supported by substantial
Vocational Expert’s Testimony:
Testimony from a vocational expert based on a properly-phrased hypothetical question
constitutes substantial evidence. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996); cf.
Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (when hypothetical question does not
encompass all relevant impairments, VE’s testimony does not constitute substantial evidence to
support the ALJ's decision). The ALJ’s hypothetical question needs to “include only those
impairments that the ALJ finds are substantially supported by the record as a whole.” Id. (citing
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see also Morse v. Shalala, 32 F.3d 1228, 1230
The Vocational expert testified that a person who could perform medium level, unskilled
work involving interpersonal contact incidental to the work performed could still perform work
as a groundskeeper, dishwasher, and material handler. Tr. 56. However, Plaintiff contends that
this assessment does not take into account the limitations resulting from his mental impairment and
his lung impairment, thereby undermining the credibility of the vocational expert’s opinion
regarding his ability to perform work that exists in significant numbers in the national economy.
However, as discussed in the sections above, the ALJ’s assessment contains the impairments he
found to be substantially supported by the record as a whole. Accordingly, we find the expert’s
testimony to constitute substantial evidence.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision denying the plaintiff benefits, and thus the decision should
be affirmed. The undersigned further finds that the plaintiff’s Complaint should be dismissed with
DATED this 28th day of December 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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