Cadarette v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 5, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SAMUEL CADARETTE

PLAINTIFF

V.

NO. 13-5228

CAROLYN W. COLVIN,
Acting Commissioner for the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Samuel Cadarette, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) under the provisions of Titles II and XVI of the
Social Security Act (Act). 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).
I.

Procedural Background:
Plaintiff filed his current applications for DIB and SSI on November 20, 2009, alleging

an inability to work since September 16, 2009, due to passing out without warning, mood
swings, and abnormal behavior. (Tr. 147-148, 165-157, 183, 187). Administrative hearings were
held on September 2, 2011, and April 23, 2012, at which Plaintiff testified and was represented
by counsel. (Tr. 31-43, 44-52).
By written decision dated June 15, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - history of

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syncope, anxiety disorder not otherwise specified, and personality disorder not otherwise
specified. (Tr. 15). However, after reviewing all of the evidence presented, the ALJ determined
that Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed
in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 16). The
ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform a work at all exertional levels but with the following
nonexertional limitations: the claimant needs to avoid hazards such as
heights or open machinery. The claimant is limited to doing simple
repetitive tasks and having no more than incidental contact with the
public.
(Tr. 18). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff could perform such jobs as hand packager and candy spreader. (Tr.
51).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 9, 2013. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 11, 12).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
II.

Applicable Law:
This Court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be

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affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, if after reviewing the record, it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the findings of the ALJ, the decision of the
ALJ must be affirmed. Young v. Apfel, 221 F. 3d 1065, 1068 (8th Cir. 2000).
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)(D). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or
equaled an impairment in the listings; (4) whether the impairment(s) prevented the claimant from

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doing past relevant work; and (5) whether the claimant was able to perform other work in the
national economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if
the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of his RFC. See McCoy v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir.
1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff raises the following arguments on appeal: 1) The ALJ erred in giving Dr. Terry

Efird’s and Dr. Cheryl Woodson-Johnson’s opinions more weight than Dr. Richard Back’s; 2)
The ALJ erred in finding Plaintiff’s impairment did not meet Listing 12.03; 3) The ALJ erred
in not finding Plaintiff’s Schizophrenia, Depression, PTSD and Obesity to be severe
impairments; and 4) The ALJ erred in discounting Plaintiff’s subjective complaints. (Doc. 11).
A.

The ALJ’s Findings of Severe Impairments:

Plaintiff argues that he has schizophrenia, depression, obesity and PTSD that are severe
impairments. An impairment is severe within the meaning of the regulations if it significantly
limits an individual’s ability to perform basic work activities. 20 C.F.R. §§ 1520(a)(4)ii),
416.920(a)(4)(ii). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight abnormalities
that would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. §
§ 404.1521, 416.921. The Supreme Court has adopted a “de minimis standard” with regard to
the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cri. 1989).
The Court first notes that Plaintiff did not allege schizophrenia, depression, obesity or
PTSD in his disability application documents (Tr. 187), which is significant. Dunahoo v. Apfel,

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241 F.3d 1033, 1039 (8th Cir. 2001). In addition, Plaintiff was not diagnosed with schizophrenia
until he was examined by Rachel Couey, MS, LPC, of Creoks Behavioral Health Services on
March 15, 2011. (Tr. 617, 635). Plaintiff was seen several times thereafter at Perspectives
Behavioral Health Management, LLC, by Peter J. Duncan, LPC/LMFT. (Tr. 780, 832, 852, 854,
857). After those visits, on October 2, 2011, Dr. Terry Efird, an acceptable medical source,
thereafter diagnosed Plaintiff with malingering and personality disorder NOS, not schizophrenia.
Nor did Dr. Efird diagnose Plaintiff with schizophrenia at his previous evaluation in 2010.
Finally, none of the acceptable medical sources diagnosed Plaintiff with PTSD, and there
is nothing in the record to indicate that Plaintiff’s obesity had an impact on Plaintiff’s ability to
function in the workplace.
Based upon the foregoing, the Court is of the opinion that the medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on Plaintiff’s ability to work, and that there is substantial evidence
to support the ALJ’s decision relating to Plaintiff’s severe impairments.
B.

Weight Given to Physicians:

Plaintiff argues that the ALJ should have given more weight to the Mental Diagnostic
Evaluation of Richard D. Back, Ph.D., dated October 24, 2011 (Tr. 821-828), rather than to the
evaluations performed by Terry Efird, Ph.D., on May 20, 2010 (Tr. 534-538), and October 2,
2011 (814-817), and the Mental RFC Assessment and Psychiatric Review Technique, completed
by non-examining consultant, Cheryl Woodson-Johnson, Psy.D., on May 26, 2010. (Tr. 556-558,
542-554).
In his decision, the ALJ gave little weight to Dr. Back’s opinion for various reasons. One

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was because Dr. Back examined Plaintiff one time. (Tr. 21). Another was because Dr. Back was
hired by Plaintiff’s attorney. (Tr. 21). The ALJ also found Dr. Back’s opinion that Plaintiff was
markedly impaired in several areas to be inconsistent with other evidence in the record. For
example, the ALJ noted that Dr. Back opined that Plaintiff’s mental impairments markedly
interfered with his day to day adaptive functioning based on the fact that Plaintiff did not drive,
rarely showered, infrequently changed clothes, and did not perform daily activities
spontaneously. However, the ALJ further noted that this was inconsistent with other evidence
in the record which showed that Plaintiff was independent in performing personal care,
independent in performing household chores, and even providing care during the day for two
young children while his wife worked, with his mother there as a precaution in case he fainted.
(Tr. 21).
In his decision, the ALJ gave great weight to the opinions of Dr. Woodson-Johnson and
Dr. Efird. (Tr. 22). He noted that Dr. Efird had the opportunity to examine Plaintiff on two
occasions, and performed psychological testing. In his first evaluation dated May 20, 2010, Dr.
Efird noted that Plaintiff continued to enjoy activities, but did become bored fairly easily. (Tr.
534). Dr. Efird reported that financial obstacles to treatment were reported, and that Plaintiff’s
ability to perform household chores adequately was endorsed, as long as he was asked to
perform those types of tasks. (Tr. 535). Plaintiff advised Dr. Efird that he used alcohol “on
occasion” or “about twice a year,” and denied the use of illegal substances. (Tr. 535). Plaintiff
did report a history of having abused methamphetamine, opium, and marijuana when younger,
but denied having smoked marijuana in months. (Tr. 535-536). Dr. Efird reported that the
frequency of Plaintiff’s mood fluctuations (several times a day) was “probably more consistent

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with cluster B types of personality traits than a cyclical mood disorder.” (Tr. 537). Dr. Efird also
offered a diagnosis of anxiety disorder NOS. (Tr. 537). Dr. Efird found that Plaintiff did not
present information clearly consistent with a psychotic disorder, and gave the following
diagnosis:
Axis I:
Axis II:
Axis V:

Anxiety disorder NOS
Personality disorder NOS (cluster B traits), primary
diagnosis
50-60

(Tr. 537). Dr. Efird concluded that Plaintiff communicated and interacted in a reasonably
socially adequate manner; that he had the capacity to perform basic cognitive tasks required for
basic work like activities; that Plaintiff appeared able to track and respond adequately for the
purposes of the evaluation; that Plaintiff generally completed most tasks during the evaluation;
and that Plaintiff completed most tasks within an adequate time frame. (Tr. 538).
On May 26, 2010, having Dr. Efird’s evaluation before her, non-examining consultant,
Dr. Woodson-Johnson, found that Plaintiff was moderately limited in seven categories and not
significantly limited in thirteen categories. (Tr. 558). She found Plaintiff was able to perform
work where interpersonal contact was incidental to work performed, e.g. assembly work;
complexity of tasks was learned and performed by rote, with few variables, little judgment; and
where supervision required was simple, direct and concrete (unskilled). (Tr. 558).
Dr. Efird evaluated Plaintiff again on October 2, 2011. (Tr. 814-817). At that evaluation,
Plaintiff advised Dr. Efird that he had been diagnosed “twice with schizophrenia.” (Tr. 814).
Plaintiff told Dr. Efird he took depression medicine, and Dr. Efird reported that Plaintiff
“endorsed far more infrequently endorsed items than is generally found with a psychotic
diagnosis. This type of response style is often referred to as a ‘faking bad.’” (Tr. 815). Dr. Efird
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noted that this type of finding is often noted in cases of malingering, where a person portrays
themselves as quite disturbed. (Tr. 815). Dr. Efird offered a diagnosis of malingering. Dr. Efird
noted that Plaintiff was prescribed Zyprexa, Klonopin, and Celexa through Perspectives
Behavioral Health Management, LLC, and that medications were reportedly taken as prescribed.
Plaintiff described the medication as having been somewhat beneficial, although Plaintiff
disclosed having thoughts of “murdering people.” (Tr. 815). Plaintiff described his use of
alcohol as social, and denied use of illegal substances. (Tr. 816). Dr. Efird found that Plaintiff
reported a wide range of severe psychiatric problems, and that based upon the records reviewed,
he had received a variety of diagnoses. (Tr. 817). He further found that the MMPI - 2 profile was
most consistent with what is considered a fake-bad profile in which a person attempts to present
themselves. Dr. Efird diagnosed Plaintiff as follows:
Axis I:
Axis II:
Axis V:

malingering
personality disorder NOS
45-55

(Tr. 817). Dr. Efird found that Plaintiff communicated and interacted in a reasonably socially
adequate manner; communicated in a reasonably intelligible and effective manner; had the
capacity to perform basic cognitive tasks required for basic work like activities; appeared able
to track and respond adequately for the purpose of the evaluation; generally completed most
tasks during the evaluation; and completed most tasks within an adequate time frame. (Tr. 817).
Dr. Efird also found that malingering would be diagnosed, which was indicated in the response
style noted on the MMPI-2; and the claimant presented some visual hallucinations which
appeared atypical for classic schizophrenia. (Tr. 817).
“A treating source's opinion is to be given controlling weight where it is supported by

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acceptable clinical and laboratory diagnostic techniques and where it is not inconsistent with
other substantial evidence in the record.” Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir.2003),
paraphrasing 20 C.F.R. § 404.1527(d)(2). When a treating source's opinion is not controlling,
it is weighed by the same factors as any other medical opinion: the examining relationship, the
treatment relationship, supporting explanations, consistency, specialization, and other factors.
See 20 C.F.R. § 404.1527(d); Lehnartz v. Barnhart, 142 Fed. Appx. 939, 940 (8th Cir. 2005).
Dr. Back only saw Plaintiff one time and is not a “treating physician.” His opinion is therefore
weighed by the treatment relationship, supporting explanations, consistency, specialization, and
other factors.
The ALJ noted that Dr. Back’s opinion was inconsistent with other evidence in the
record, which showed that Plaintiff was “independent in performing personal care, independent
in performing household chores, and even providing care during the day for two young children
while his wife works with his mother there as a precaution in case he faints.” (Tr. 21). The ALJ
also found that Dr. Back’s opinion seemed to “disregard evidence in the record where the
claimant reports: playing video games with his friend, having a 5 year long marriage, enjoying
spending time with his children, recommencing a relationship with an old high school friend
when he and his wife separated, reconciling with his wife following a separation, and spending
time with his neighbors. (Tr. 21). The ALJ also noted that Plaintiff answered almost all the
cognitive questions accurately and performed all math problems adequately. (Tr. 21). On the
other hand, the ALJ noted that Dr. Efird saw Plaintiff twice, performed psychological testing,
and found his opinion, as well as Dr. Woodson-Johnson’s opinion, consistent with the record.
Based upon the foregoing, the Court finds that there is substantial evidence to support

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the weight the ALJ gave to the physician’s opinions.
C.

Whether Plaintiff’s impairment met Listing 12.03:

Plaintiff argues that when Dr. Back’s assessment is given the great weight it deserves,
it becomes clear that Plaintiff meets Listing 12.03. The Court has already determined above that
the ALJ gave the opinion of Dr. Back appropriate weight. Thus, Plaintiff’s argument on this
issue is without merit.
D.

Credibility Analysis:

Plaintiff argues that the ALJ erred in discounting Plaintiff’s subjective complaints. The
ALJ was required to consider all the evidence relating to Plaintiff’s subjective complaints
including evidence presented by third parties that relates to: (1) Plaintiff’s daily activities; (2)
the duration, frequency, and intensity of his pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness, and side effects of his medication; and (5) functional restrictions. See
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may not discount a
claimant’s subjective complaints solely because the medical evidence fails to support them, an
ALJ may discount those complaints where inconsistencies appear in the record as a whole. Id.
As the Eighth Circuit has observed, “Our touchstone is that [a claimant’s] credibility is primarily
a matter for the ALJ to decide.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
In this case, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms but that Plaintiff’s statements concerning
the intensity, persistence and limiting effects of the symptoms were not credible to the extent
they were inconsistent with his RFC. (Tr. 20). The ALJ then referred to the instances which
support his position. For example, the ALJ noted that although Plaintiff reported to Dr. Efird that

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he had anxiety being around people and reported a history of social isolation, he also reported
that he spent time on Facebook, lived with his mother and adult brother, had been married for
5 years, and had two young children. (Tr. 20). The ALJ also noted that Plaintiff was apparently
successful in starting a new relationship with a high school friend and later got back together
with his wife following a separation. (Tr. 20). The ALJ also pointed out that Plaintiff’s
statements regarding his history of drug use were not consistent, and noted examples of such
inconsistency. (Tr. 21). In addition, the ALJ considered Plaintiff’s work record, which showed
that Plaintiff worked only sporadically prior to the alleged disability onset date, which raised the
question as to whether Plaintiff’s continuing unemployment was actually due to his impairments.
(Tr. 21).
The Court finds, based upon the foregoing, as well as those reasons given in Defendant’s
brief, that there is substantial evidence to support the ALJ’s credibility findings.
IV.

Conclusion:
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 prejudice.
IT IS SO ORDERED this 5th day of January, 2015.

/s/ Erin L. Setter
HONORABLE ERIN L. SETTER
UNITED STATES MAGISTRATE JUDGE

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