Duncan v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 17, 2015. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SHERI D. DUNCAN

PLAINTIFF

V.

NO. 14-5264

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Sheri D. Duncan, 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 her claim for supplemental security income (SSI) under the
provisions of Title 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 protectively filed her current SSI application on May 3, 2011, alleging an

inability to work due to bipolar disorder, anxiety disorder, posttraumatic stress disorder
(PTSD), agoraphobia, schizophrenia, high blood pressure, high cholesterol, and diabetes. (Tr.
189-198, 224, 228). An administrative hearing was held on February 5, 2013, at which
Plaintiff appeared with counsel and testified. (Tr. 44-84).
By written decision dated March 1, 2013, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe – bipolar disorder, PTSD, and

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panic disorder with agoraphobia. (Tr. 14). 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. 15). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform a full range of work at all exertional levels; however, she has
the following nonexertional limitations. She is limited to unskilled
work involving individually centered processes rather than a teamoriented process. She cannot do assembly-line work. The work
environment must be limited to a place where fellow employees are a
relatively stable team, as in having relatively low turnover and not
subject to new revolving faces on a daily basis. Further, the work
should be repetitious and predictable, as well as away from direct
public contact.
(Tr. 17). With the help of the vocational expert (VE), the ALJ determined that there were
jobs Plaintiff would be able to perform, such as hand packager – medium work; hand
packager; advertising material distributor; machine packaging, and janitorial work – all light
work. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on June 26, 2014. (Tr. 1-5). Subsequently, Plaintiff filed this
action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties.
(Doc. 9). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.
12, 14).
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.

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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 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 her disability by establishing a physical or mental disability that has lasted
at least one year and that prevents her 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 her disability, not simply her
impairment, has lasted for at least twelve consecutive months.

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The Commissioner’s regulations require her 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 her 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 doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given her 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 her 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 issues in this matter: 1) Whether there is substantial

evidence to support the ALJ’s findings; and 2) Whether the ALJ erred in failing to consider
Plaintiff’s low GAF scores. (Doc. 12).
A. Evidence:
Plaintiff’s medical records date back to August 3, 2005, when Plaintiff presented
herself to Comanche County Memorial Hospital, complaining of vomiting. (Tr. 839). As the
relevant time period in this case begins on May 3, 2011, the date Plaintiff filed her SSI
application, the most relevant records begin at that time. However, the Court has considered
records and medical opinions from outside the application date, in “helping to elucidate a
medical condition during the time for which benefits might be rewarded.” Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006)(holding that the parties must focus their attention on
claimant’s condition at the time she last met insured status requirements).
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With respect to Plaintiff’s mental impairments, the records reveal that on the
following pre-application dates, Plaintiff was treated at various times for her alleged mental
impairments: July 19, 2006, by Dr. Brad Bigelow, a licensed psychologist (Tr. 314); January
4, 2007, April 4, 2007, and August 4, 2007, at Red Rock Behavioral Health Services (Tr.
459, 468, 477); April 19, 2007, at North Rock Medication Clinic (Tr. 449); and June 19,
2007, at St. Anthony Hospital (Tr. 329). Plaintiff began seeing Dr. Richard Zielinski, M.D.,
in 2010, who diagnosed Plaintiff as follows:
Axis I:
Axis IV:
Axis V:

Bipolar Disorder
Primary Social
50

(Tr. 591).
When Plaintiff filed her SSI application on May 3, 2011, she reported she was taking
Seroquel and Xanax. (Tr. 222). In her Disability Report- Adult- dated May 17, 2011, she
reported she was taking Abilify, Celexa, Seroquel, and Xanax. (Tr. 230). On October 12,
2011, non-examining consultant, Christal Janssen, Ph.D., completed a Mental RFC
Assessment1, wherein Dr. Janssen found Plaintiff appeared able to perform simple/repetitive
work with incidental interpersonal contact and direct/concrete supervision. “Unskilled.” (Tr.
621). Dr. Janssen also completed a Psychiatric Review Technique Report on July 20, 2011,
and found Plaintiff had a mild degree of limitation in activities of daily living, a moderate
degree of limitation in maintaining social functioning and in maintaining concentration,
persistence, or pace, and had no episodes of decompensation, each of extended duration. (Tr.
633).
On January 29, 2012, Plaintiff presented to Northwest Medical Center in Springdale
for evaluation secondary to stress and depression as well as complaints of suicidal gesture.

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(Tr. 706). Plaintiff reported that she had been off of her Seroquel since May of 2011 as well
as the Trazodone and Abilify. (Tr. 706). It was noted that Plaintiff was smoking one pack of
cigarettes per day at that time, and that her last drug usage was approximately two days
previously, with marijuana and methamphetamine. (Tr. 707). At that time, her gait and
station were reported as normal, and the stability, strength and tone in the bilateral upper
extremities and lower extremities were reported as normal. (Tr. 707). Plaintiff was assessed
with suicidal gesture, depression, polysubstance abuse, hypertension, diabetes mellitus, type
2, noncompliant, and acute migraine. (Tr. 708). While Plaintiff was in the hospital, on
January 30, 2012, Dr. Rachel Fiori evaluated Plaintiff, and was informed that Plaintiff had
been trying to get into Ozark Guidance, that they were “too busy” and “not able to do
anything” and that without her medications, her mood had been “really shitty.” (Tr.712).
Plaintiff’s drug screen was positive for amphetamines, methamphetamine, and THC. (Tr.
713). Plaintiff was then diagnosed as follows:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Mood disorder, nos
Methamphetamine abuse
Marijuana abuse
Borderline personality traits
Diabetes, hypertension, headaches
Primary support, financial, and access to care
GAF – 45

(Tr. 714). Thereafter, on February 14, 2012, Plaintiff presented herself to UAMS Family
Medical Center, denying suicidal ideation, but was mildly depressed and increasingly
anxious. (Tr. 716). At that time, it was reported that Plaintiff was smoking 1 and ½ packs of
cigarettes per day. (Tr.716). She was reported as stable, and was to follow up at Ozark
Guidance for evaluation and management for her psychiatric indications. (Tr. 717). On April

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12, 2012, non-examining consultant, Jon Etienne Mourot, Ph.D., affirmed the July 20, 2011
rating given by Dr. Janssen. (Tr. 870).
On October 30, 2012, Plaintiff presented to Northwest Medical Center, requesting
medication for her acute anxiety. (Tr. 937). She reported that she had been out of “psych”
medications for three months, and denied suicidal ideations. (Tr.942). On that same date,
Plaintiff was seen by Lisa Kessler, LCSW, of Ozark Guidance, and Plaintiff reported that she
last took medications in July. (Tr. 979). Plaintiff indicated that she self-medicated with
marijuana, which helped with her anxiety, two to three times weekly. (Tr. 979). Ms. Kessler
diagnosed Plaintiff as follows:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

PTSD – chronic
Mood Disorder, Unspecified Episodic
Diagnoses deferred
R/O Borderline Personality Disorder
OMC – other medical condition
Back pain
problems with primary support
GAF – 41

(Tr. 984). Retha Gregory, LPC, of Ozark Guidance, saw Plaintiff on December 3, 2012, and
gave the same diagnosis. (Tr. 974). On December 28, 2012, Dr. William Meaney, of Ozark
Guidance, saw Plaintiff and noted that Plaintiff had been told she must be borderline and that
she must be bipolar. However, Dr. Meaney reported that a “mixture of dysthymia and PTSD
is closer to the actual dynamics.” (Tr. 1008). His diagnosis was as follows:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

Posttraumatic Stress Disorder
Mood Disorder, Unspecified Episodic
Diagnosis deferred
OMC – Other Medical Condition
Back pain
Problems with primary support
GAF – 41

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(Tr. 1009). On January 24, 2013, Dr. Barry Cole, of Ozark Guidance, diagnosed Plaintiff as
follows:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

PTSD – chronic
Dysthymic Disorder – with atypical features
Diagnosis deferred
OMC and diabetes
problems with primary support
GAF – 41

(Tr. 1011).
B. Credibility Analysis:
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 her pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of her 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 his decision, the ALJ concluded that although Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, her statements
concerning the intensity, persistence and limiting effects of the symptoms were not entirely
credible.

(Tr. 18).

The ALJ discussed Plaintiff’s daily activities, noting that she was

independent with self-care, cooked meals and shopped for the household, and performed
regular household cleaning and chores. (Tr. 15). He also noted that Plaintiff was rearing two
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children, read and studied religion, followed written instructions okay, and was able to shop
once a month for goods and supplies. (Tr. 15). The ALJ also discussed the fact that when
Plaintiff was compliant and current with her medications, she functioned adequately and
within reasonable vocational expectations. (Tr. 17). The ALJ observed that in spite of her
anxious and sometimes depressed mood, Plaintiff was consistently found to be alert and
cooperative with logical thoughts, an intact memory, appropriate judgment and insight, and
free of hallucinations and or delusions. (Tr. 18). The ALJ mentioned the fact that Plaintiff
had not particularly adhered to medical advice and directives from her physician, which he
found served to undermine her credibility as it related to her allegations and said intensity
and persistence of her reported symptoms. (Tr. 18). For example, against her physicians’
urgings, Plaintiff continued to smoke cigarettes, 1 eat fatty foods, forego exercise, and drank
up to 32 ounces of regular soft drinks per day. (Tr. 18). The ALJ also noted the fact that
Plaintiff also indicated that she was trying to assist with the care of her father, who is in
failing health. (Tr. 18).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
C. RFC Determination:
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
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Plaintiff’s smoking habit discredits her disability allegations. See Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003);
Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999); Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)

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Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). 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). “[T]he ALJ is [also] required to set forth
specifically a claimant’s limitations and to determine how those limitations affect his RFC.”
Id. “The ALJ is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-4087MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).
Plaintiff argues that the ALJ failed to reference or acknowledge Plaintiff’s
consistently low GAF scores, and that considering the low GAF scores, her reported mental
limitations and restrictions, as well as her testimony and that of the VE, the ALJ’s decision is
not based upon substantial evidence.
The Court first notes that the Eighth Circuit has held that GAF scores are “not
essential to the accuracy of an RFC determination, only that it may be of considerable help in
formulating RFC.” Earnheart v. Astrue, 484 F. Appx. 73, 75 (8th Cir. 2012); King v. Colvin,
No. C13-3039-LTS, 2014 WL 1344194, at *11 (N.D.Iowa, Apr. 4, 2014). In addition, in
Jones v. Astrue, 619 F.3d 963, 973-974 (8th Cir. 2010), the Eighth Circuit referenced a 6th
Circuit opinion, DeBoard v. Comm’r of Soc.Sec., 211 Fed. Appx. 411, 415 (6th Cir.
2006)(unpublished), in support of its position, when it stated that “an ALJ may afford greater
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weight to medical evidence and testimony than to GAF scores when the evidence requires
it.” Jones, 619 F.3d at 974.
It is clear that the ALJ considered the GAF scores, as is evidenced by the following
dialogue that took place at the hearing:
ALJ: Throughout the record, there’s an awful lot of reporting of
GAF scores of anywhere between 40 and 50. And even though the
more recent GAF scores were even lower than it had been, hardly
anywhere is a clinic reporting of anything other than, as I read it, the
clinician reporting that in spite of the underlying disorder that with
medication and with adaptation to life that she is functionally okay
and that she appears okay. What I would like in addition to
testimony is for you, as we go through the record today, if there’s
anything that you spot in the way of actual clinical reportings of
signs and symptoms and the way a person appears and instances of
things that happened and that sort of thing that would support that
kind of a result on a GAF score other than just simply diagnosis of
posttraumatic disorder and dysthymic disorder. I point it out, in
other words, I’m a little low just based on my experience and the way
these files are, I’m a little hesitant just simply to say that diagnosis is
all that’s required in order to find a GAF score, regardless of what
the diagnosis is, whether it’s physical, mental or whatever, -…
ATTY: And I understand what you’re saying, Judge, and I’ll do
my best. The only thing I will tell you is that the GAF score that the
Ozark Guidance Center has assigned, if you look at it, the thing that
gives it credibility is that Ms. Duncan has seen several different
psychologists or psychiatrists and they have all, after evaluating her
and giving her similar diagnoses, have all given her GAF scores
below 50. Dr. Brad Bigelow, back in ’06, was at 45. You know, the
OGC records, which are more recent obviously, are even lower than
that. …
(Tr. 47-49). Clearly, the ALJ considered the GAF scores, but gave greater weight to the
medical evidence and testimony.
With respect to Plaintiff’s other alleged physical impairments, there are countless
records indicating Plaintiff was not compliant with treatment recommendations, such as
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obtaining an ultrasound for her gallbladder issues (Tr. 763, 767, 778);

failing to quit

smoking (Tr. 734, 746, 967); failing to follow up with the Lawton Community Health Clinic
(Tr. 760, 775); and failing to take medicine for her diabetes and high blood pressure (Tr. 721,
724). Plaintiff also testified at the hearing that between 2009 and 2011, she was tolerating
her medication with no side effects, and was “doing good on my medications.” (Tr. 60-61).
The Court recognizes that in some of the records, Plaintiff indicated that she was
unable to obtain treatment because she could not afford it. However, Plaintiff was able to
afford to smoke from 1 to 1 ½ packs of cigarettes per day, which indicates that she
apparently chose to spend her money on cigarettes rather than treatment. (Tr. 16). In
addition, although Plaintiff indicated in one of her function reports that all she did all day
was lie on the couch, there is other evidence indicating otherwise, as noted by the ALJ and
discussed above.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC determination.
D. Hypothetical Question to VE:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set
forth the impairments which the ALJ accepted as true and which were supported by the
record as a whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the
Court finds that the vocational expert's opinion constitutes substantial evidence supporting
the ALJ's conclusion that Plaintiff's impairments did not preclude him from performing such
jobs as hand packager – medium work; hand packager; advertising material distributor;

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machine packaging, and janitorial work – all light work. Pickney v. Chater, 96 F.3d 294, 296
(8th Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical
question constitutes substantial evidence).
IV.

Conclusion:
Accordingly, having carefully reviewed the record, the Court finds substantial

evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision
is hereby affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with
prejudice.
IT IS SO ORDERED this 17th day of August, 2015.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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