Mess v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS recommending Commissioner's determination that Mess was not disabled be affirmed and that judgment be entered against Mess and in favor of the Commissioner re 4 Complaint. Objections to R&R due by 5/31/2016. Signed by Magistrate Judge CJ Williams on 5/16/16. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DUBUQUE DIVISION
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Plaintiff, Thomas Mess, seeks judicial review of a final decision of the
Commissioner of Social Security (Commissioner) denying his application for disability
insurance benefits (DIB) and supplemental security income benefits (SSI), under Titles II
and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Mess contends that
the administrative record (AR) does not contain substantial evidence to support the
Commissioner’s decision that he was not disabled during the relevant time period. For
the reasons that follow, the court recommends that the Commissioner’s decision be
Mess was born in 1967, and he completed high school. AR 66. He has past
relevant work as a die maker, stamping press operator, laser beam machine operator, and
warehouse worker. AR 66. He applied for DIB and SSI on January 11, 2012, alleging
a disability onset date of January 1, 2012. AR 113. He alleged disability due to
depressive mood disorder, poor impulse control, back pain, migraines, and fibromyalgia.
The Commissioner denied Mess’ application initially and upon reconsideration.
AR 175-178, 189-192. Mess then requested a hearing before an Administrative Law
Judge (ALJ). On October 30, 2013, ALJ David Buell conducted a video hearing at which
Mess and a vocational expert testified. AR 73-112. The ALJ issued a decision denying
Mess’ claim on January 7, 2014. AR 53-72. The ALJ found that Mess was unable to
perform past relevant work. AR 66. However, the ALJ determined that there was other
work Mess could perform such as cleaner, assembler of small parts, or a marker. AR
The Appeals Council denied Mess’ review of the ALJ’s decision. AR 1-7. The
ALJ’s decision stands as the final decision of the Commissioner. AR 1; 20 C.F.R. §
Mess filed a complaint in this Court on April 30, 2015, seeking review of the
Commissioner’s decision. Doc. 4. This matter has been referred to me pursuant to 28
U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition. The
parties have briefed the issues, and the matter is now fully submitted.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined as “the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. § 416.905. An individual has a disability when, due to his physical or mental
impairments, he “is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful
work which exists . . . in significant numbers either in the region where such individual
lives or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
If the claimant is able to do work which exists in the national economy but is unemployed
because of inability to get work, lack of opportunities in the local area, economic
conditions, employer hiring practices, or other factors, the ALJ will still find the claimant
not disabled. 20 C.F.R. § 416.966(c)(1)-(8).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. Id. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §
416.920(a)(4)(i). “Substantial” work activity involves physical or mental activities.
“Gainful” activity is work done for pay or profit. 20 C.F.R. § 416.972(a)-(b).
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and medical impairments.
If the impairments are not severe, then the claimant is not disabled. 20 C.F.R. §
416.920(a)(4)(ii). An impairment is not severe if “it does not significantly limit your
physical or mental ability to do basic work activities.” 20 C.F.R. § 416.921(a); see also
20 C.F.R. §§ 416.920(c), 416.921(a); Kirby, 500 F.3d at 707.
The ability to do basic work activities is defined as having “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and
aptitudes include: (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting. Id. § 416.921(b)(1)(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine its medical severity.
If the impairment meets or equals one of the
presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience. 20 C.F.R. §§
416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of his past relevant work.
If the claimant cannot do his past relevant work, then he is considered disabled. 20
C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). Past relevant work is any work the claimant
has done within the past 15 years of his application that was substantial gainful activity
and lasted long enough for the claimant to learn how to do it. Id. § 416.960(b)(1). “RFC
is a medical question defined wholly in terms of the claimant’s physical ability to perform
exertional tasks or, in other words, what the claimant can still do despite his or her
physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(internal quotation marks omitted); See 20 C.F.R. § 416.945(a)(1). The RFC is based
on all relevant medical and other evidence. Id. § 416.945(a)(3). The claimant is
responsible for providing the evidence the Commissioner will use to determine the RFC.
Id. If a claimant retains enough RFC to perform past relevant work, then the claimant is
not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC, as determined in Step Four, will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
show there is other work the claimant can do, given the claimant’s RFC, age, education,
and work experience. Id. §§ 416.912(f), 416.920(a)(4)(v). The Commissioner must
show not only that the claimant’s RFC will allow him to make the adjustment to other
work, but also that other work exists in significant numbers in the national economy.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make the adjustment, then the Commissioner will
find the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(v). At step five, the
Commissioner has the responsibility of developing the claimant’s complete medical
history before making a determination about the existence of a disability.
416.945(a)(3). The burden of persuasion to prove disability remains on the claimant.
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
If after these five steps, the ALJ has determined the claimant is disabled, but there
is medical evidence of substance use disorders, the ALJ must decide if that substance use
is a contributing factor material to the determination of disability.
42 U.S.C. §§
423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s limitations without
the substance use. Id. If the limitations would not be disabling, then the disorder is a
contributing factor material to determining disability and the claimant is not disabled. 20
C.F.R. § 416.935.
THE ALJ’S FINDINGS
The ALJ made the following findings:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016. [Sic]
The claimant has not engaged in substantial gainful activity since
January 1, 2012, the alleged onset date (20 C.F.R. §§ 404.1574 et seq.,
and 416.971 et seq.).
The claimant has the following severe impairments: mood disorder,
learning disorder, personality disorder, degenerative disc disease, and
fibromyalgia (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
The claimant has the residual functional capacity to perform light
work (lift or carry 20 pounds occasionally and 10 pounds frequently, stand
or walk for six hours out of an eight-hour workday and sit for six hours out
of an eight-hour workday) as defined in 20 C.F.R. 404.1567(b) and
416.967(b) except: he can stoop, crouch, kneel and crawl only occasionally.
He cannot climb ladders, ropes or scaffolds. He cannot be exposed to
intense vibration, such as operating power tools. He can only perform
simple routine, repetitive work, requiring no close attention to detail, or
independent judgment on the job. He requires an occupation where all tasks
assigned to him could be performed without interaction with the public.
Regarding co-workers, he requires tasks that are essentially performed
without coordination and require no cooperation or interaction with coworkers. He is able to work in proximity to others.
The claimant is unable to perform any past relevant work (20 C.F.R.
§§ 404.1565 and 416.965).
The claimant was born on December 29, 1967, and was 44 years
old, which is defined as a younger individual age 18-49 on the alleged
disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. §§ 404.1564 and 416.964.)
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404,
Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform (20 C.F.R. §§
404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from January 1, 2012, through the date of this decision (20
C.F.R. §§ 404.350(a)(5), 404.1520(g) and 416.920(g)).
THE SUBSTANTIAL EVIDENCE STANDARD
This Court must affirm the Commissioner’s decision “if it is supported by
substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir. 2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth
Circuit explains the standard as “something less than the weight of the evidence and [that]
allows for the possibility of drawing two inconsistent conclusions, thus it embodies a
zone of choice within which the [Commissioner] may decide to grant or deny benefits
without being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939
(8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
Mess argues the ALJ’s decision is flawed for four reasons:
The ALJ failed to give proper weight to the opinion of Timothy
The ALJ failed to give proper weight to the consultative physician.
The ALJ erred by not following up with Dr. Gibson.
The ALJ erred in not granting credibility to Mess’ subjective
allegations of pain.
The court will address these arguments separately below.
A. The ALJ Properly Evaluated the Nurse Practitioner’s Opinion
The ALJ properly evaluated the opinion evidence from the nurse practitioner,
Timothy Wedeward. Nurse practitioners are not “acceptable medical sources.” Social
Security Ruling (“SSR”) 06-03p. Opinions from these sources may provide valuable
insight into the severity of an impairment and how that impairment affects an individual’s
ability to function.
SSR 06-03p; 20 C.F.R. §§ 404.1513(d), 416.913(d).
acceptable medical sources, however, non-acceptable medical sources cannot provide
medical opinions or opinions entitled to controlling weight.
SSR 06-3p. An ALJ may
weigh opinions from such other sources using factors such as the nature and extent of the
relationship between the source and the claimant; the degree to which relevant evidence
supports the opinion; the consistency between the opinion and the record as a whole;
whether the sources is a specialist in the area in which the opinion is based; and other
factors that support or contradict the opinion. SSR 06-3p; 20 C.F.R. §§ 404.1527(c)(2),
Here, the ALJ gave some weight to Mr. Wedeward’s December 2012 Mental RFC
Questionnaire. AR 62, 599-604.
The Mental RFC Questionnaire had five categories of
limitations: 1) unlimited or very good; 2) limited but satisfactory; 3) seriously limited,
but not precluded; 4) unable to meet competitive standards; and 5) no useful ability to
function. AR 602. “[S]eriously limited, but not precluded” means a substantial loss of
ability to perform the activity.
Contrary to plaintiff’s assertion, choosing this
category did not mean Mr. Wedeward believed plaintiff was precluded from working. If
Mr. Wedeward believed that plaintiff was precluded from an activity, he could have
indicated the fourth or fifth categories. Instead, Mr. Wedeward’s opinion only indicated
the second and third categories, neither of which precluded work activity.
Mr. Wedeward opined that plaintiff had a limited but satisfactory ability to:
remember work-like procedures;
understand and remember very short and simple instructions;
sustain an ordinary routine with special supervision;
work in coordination with or proximity to others;
make simple work-related decisions;
perform at a consistent pace without an unreasonable number and length
of rest periods;
ask simple questions or request assistance;
accept instructions and respond appropriately to supervisor criticism;
get along with co-workers or peers;
respond appropriately to changes in a routine work setting;
be aware of normal hazards;
set realistic goals or make plans independently;
interact with the general public; and,
maintain socially appropriate behavior
AR 602-603. Mr. Wedeward’s opinion was that plaintiff was seriously limited, but not
precluded from the remaining work activities:
maintaining attention for a two-hour segment;
maintaining regular attendance and being punctual;
completing a normal workday and workweek without interruptions
from psychologically based symptoms;
dealing with normal work stress;
understanding, remembering, and carrying out detailed instructions;
dealing with stress of semi-skilled or skilled work;
adhering to basic standards of neatness and cleanliness;
traveling in unfamiliar places; and,
using public transportation.
AR 602-603. Thus, contrary to plaintiff’s assertion, Mr. Wedeward did not opine that
plaintiff was precluded from performing any of these work activities.
The ALJ did not completely dismiss Mr. Wedeward’s opinion. Rather, he gave
appropriate reasons for assigning this opinion some, but not full, weight. AR 62. The
ALJ noted an inconsistency between Mr. Wedeward’s opinion that plaintiff would miss
four days of work per month, yet was not precluded from performing any work activities.
AR 62, 604.
The vocational expert testified that an individual who missed four days of
work per month would be precluded from all competitive employment. AR 110. Thus,
Mr. Wedeward’s opinion regarding plaintiff’s preclusive absences was inconsistent with
his opinion that plaintiff was not precluded from completing a normal workweek and
could perform work activities independently, appropriately, effectively, and on a
sustained basis in a regular work setting. AR 602-603. See Hacker v. Barnhart, 459 F.3d
934, 937 (8th Cir. 2006) (a treating physician’s own inconsistency may undermine his
opinion and diminish or eliminate the weight given).
The ALJ also found Mr. Wedeward’s opinion inconsistent with his own treatment
notes that showed mostly normal mental status exam results. AR 62. For example,
although plaintiff exhibited a depressed mood and affect and occasional suicidal ideations
on May 7, 2012, by August 3, 2012, plaintiff reported that despite some initial insomnia,
he was feeling better since getting back on medication. AR 540, 574. If an impairment
can be controlled by treatment or medication, it cannot be considered disabling. Schultz
v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007). Mental status examination showed plaintiff
was alert and oriented; his general appearance, speech, and psychomotor activity were
within normal limits; his mood and affect were bright; his thought content was clear; he
denied suicidal or homicidal ideations; he had logical associations; he had fair insight and
judgment; and his memory, concentration, and attention span were intact. AR 542-543.
His pain was zero on a scale of one to ten. AR 542.
Mr. Wedeward assessed plaintiff
with a global assessment of functioning (“GAF”) 1 score of 60 2 (AR 543).
In December 2012, plaintiff had the same mental status examination, except for
some occasional suicidal ideation, but no intent. AR 621. Mr. Wedeward did not believe
that plaintiff had an impairment in impulse control. AR 601. Plaintiff reported an
improved mood, and Mr. Wedeward unflagged him for the suicide prevention team. AR
Mr. Wedeward said that his December 2012 opinion was supported by symptoms
such as sleep disturbance, emotional withdrawal or isolation, suicidal thoughts, feelings
of guilt or worthlessness, anhedonia, decreased energy, and persistent mood or affect
disturbances. AR 601. However, Mr. Wedeward’s own treatment notes leading up to
his December 2012 opinion were inconsistent with these reported symptoms. The ALJ
may properly discount an opinion where the limitations listed on the form were never
mentioned in treatment records, nor supported by any objective testing or reasoning, or
when they were made for purposes of supporting a claim for benefits rather than in the
course of treatment.
See Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007); see
The GAF is a numerical score from 0 to 100 that considers the “psychological, social, and
occupational functioning.” See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, at 32 and 34 (Text Revision 4th ed. 2000) (“DSM-IV-TR”).
A GAF score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers). DSM-IV-TR, at 34. A
GAF score of 61 to 70 corresponds to “some mild symptoms or some difficulty in social,
occupational, or school functioning but general functioning pretty well, has some meaningful
interpersonal relationships.” Id. at 32.
also Vandenboom v. Barnhart, 421 F.3d 745, 749 (8th Cir. 2005) (inconsistencies in the
medical record, as well as the provider’s failure to document objective medical evidence
to support claimant’s subjective complaints, justified giving the opinions less weight);
Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007); Hacker v. Barnhart, 459 F.3d
934, 937 (8th Cir. 2006).
Mr. Wedeward’s treatment notes following his December 2012 opinion also
supported the ALJ’s decision to assign only some weight to the opinion.
2013, plaintiff denied suicidal ideations and reported doing “OK” and having improved
sleep. AR 614.
Plaintiff’s mental status examination revealed the same normal results
as plaintiff’s August 2012 visit, and Mr. Wedeward increased his GAF to 62. AR 617.
Mr. Wedeward noted that plaintiff had good self-control, only mild dysphoria, and few
risk factors. AR 618.
When plaintiff saw Mr. Wedeward in May 2013, he reported a
better mood, less isolation, and no suicidal ideation. AR 646. Mental status examination
showed intact concentration, attention, and memory; fair insight and judgment; brighter
mood and effect; clear thought content; and normal speech, psychomotor activity, and
general appearance. AR 648.
His GAF was 65. AR 649.
In July 2013, plaintiff’s mental status examination showed depressed mood,
impaired judgment and insight, strong suicidal ideation, subdued speech, and retarded
psychomotor activity. AR 679. However, plaintiff reported that his father had recently
been diagnosed with cancer. Id. He reported that he lived with both his parents but only
got along with his father, and was worried his mother would make him leave after his
father died. AR 676.
In addition, he had recently lost several other family members.
AR 699. Mr. Wedeward admitted plaintiff to the hospital for suicidal ideation. Id.
Situational stressors (i.e., loss of job, chaos at home, inability to do same physical
activities as before) do not rise to the level of a mental impairment contemplated by the
Act. Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001).
The ALJ also found that Mr. Wedeward’s opinion regarding plaintiff’s absences
was inconsistent with plaintiff’s work activity. AR 604.
Specifically, the ALJ noted
plaintiff’s own testimony that he would have been hired permanently at his previous job
if he had not punched another employee. AR 62, 83.
In fact, plaintiff said he had a
“good record” at that job. AR 83. Thus, the ALJ reasonably concluded plaintiff’s
performance and attendance was satisfactory, and therefore was inconsistent with Mr.
Wedeward’s opinion regarding plaintiff having to miss four days of work per month due
to his impairments. AR 62.
Toland v. Colvin, 761 F.3d 931, 936 (8th Cir. 2014)
(admitted abilities inconsistent with treating physician opinion).
Finally, plaintiff’s subjective reports of pain do not support Mr. Wedeward’s
opinion. Although Mr. Wedeward said that “depression can lower a patient’s tolerance
to pain,” this vague and conclusory statement was not entitled to any weight. AR 603.
Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004) (appropriate to disregard a
physician’s vague, conclusory statements). Further, the ALJ found plaintiff’s allegations
of pain were not entirely credible.
In fact, when plaintiff saw Mr. Wedeward, his
reported pain was often zero, and no more than three, except for when he had a score of
four the day he reported suicidal ideation following his father’s diagnosis. AR 542, 556,
574, 618, 623, 656, 680, 696, 724, 729.
Thus, other than a situational stressor, Mr.
Wedeward’s treatment notes do not show that plaintiff’s depression affected his pain.
Opinions based on discredited subjective complaints are not entitled to significant weight.
See Kirby, 500 F.3d at 709 (medical opinion relied heavily on claimant’s subjective report
of symptoms, which the ALJ found not credible).
In sum, the ALJ applied the relevant factors for weighing the nurse practitioner’s
opinion and gave legitimate reasons for the weight assigned.
supports the ALJ’s conclusion.
Wildman, 596 F.3d at 964; Loving, 16 F.3d at 969.
B. The ALJ Properly Evaluated the Consultative Examiner’s Opinion
The Commissioner hired Dr. Keith Gibson, Ph.D., to perform a mental health
evaluation of Mr. Mess. AR 496.
Dr. Gibson diagnosed Mr. Mess with Depressive
Disorder, NOS. He could not rule out Intermittent Explosive Disorder. AR 498. Dr.
Gibson provided Mr. Mess with the Beck Depression Inventory and Mini Mental Status
Exam. AR 496. The results of the Beck Depression Inventory was a score of 33,
indicating depressive symptoms of severe intensity are currently present. AR 498. The
score on the Mini Mental Status Exam was a 27 out of 30 points. AR 498. Dr. Gibson
noted that “[c]hronic depressive symptoms and chronic low back pain would impair Mr.
Mess’ capacity to maintain attention, concentration and pace sufficient for full-time
AR 499. Dr. Gibson also stated Mr. Mess was most impaired
in the area of interacting appropriately with others in the work place, and that co-workers
would be inclined to give Mr. Mess a “wide berth,” and that Mr. Mess uses his temper
to intimate others. Id. This is not a disability.
The ALJ gave limited weight to Dr. Gibson’s opinions and findings. AR 63. The
ALJ stated that an individual with a normal mental status is not consistent with a finding
of disabling mental limitation. Id. Secondly, the ALJ found that the claimant using his
temper as an intentional inter-personal tactic to intimidate others or causing others to give
him a wide berth are not the result of any medical conditions. Id. Again, this is not a
Dr. Gibson opined that plaintiff was capable of remembering and understanding
instructions, procedures, and locations in a work setting. AR 499.
He noted that
plaintiff’s depressive symptoms and chronic low back pain impaired his capacity to
maintain attention, concentration, and pace sufficient for full-time gainful employment.
He opined that plaintiff had difficulty getting along with others, and his co-workers
would likely be inclined to give him a wide berth. Id. Dr. Gibson opined that plaintiff
was most impaired in the area of interacting appropriately with others and was likely to
use his temper to intimidate or control others. Id. Dr. Gibson said that plaintiff made
reasonable decisions, and his judgment was intact. Id.
He also believed plaintiff had
the cognitive capacity to respond adaptively and flexibly to changes in the work place.
The ALJ found that Dr. Gibson’s opinion in this regard was inconsistent with the
objective medical evidence. Dr. Gibson’s mental status examination of plaintiff showed
his thought flow and speech were normal, and he was essentially cooperative. AR 498.
Plaintiff denied obsessions, compulsions, phobias, auditory or visual hallucinations, and
ideas of reference or influence. Id. The ALJ noted that other than a depressed mood,
plaintiff’s mental status examination was otherwise normal.
plaintiff’s assertion, normal mental status findings can be inconsistent with disabling
mental limitations. Cobb v. Colvin, No. 2:13CV0015-TCM, 2014 WL 6845850, at *14
(E.D. Mo. Dec. 3, 2014) (unpublished) (normal mental status examinations supported
ALJ’s credibility finding). Although the ALJ correctly noted that plaintiff scored 27/30
on the Mini Mental Status Exam, this was just one part of the mental status summary
provided in Dr. Gibson’s report. AR 62, 498.
Moreover, the ALJ considered, but was not required to give great weight to, Dr.
Gibson’s opinion that plaintiff’s depressive symptoms and back pain impaired his capacity
to maintain attention, concentration, and pace sufficient for full-time gainful employment
(AR 63, 499). To the extent that Dr. Gibson opined about plaintiff’s ability to maintain
gainful employment, that opinion concerns an issue reserved to the Commissioner and is
not entitled to controlling weight. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005);
20 C.F.R. § 416.927(d)(2); SSR 96-5p.
Also, Dr. Gibson’s opinion was based on plaintiff’s depressive symptoms and back
pain. AR 499. Notably, Dr. Gibson did not perform a physical examination of plaintiff,
and thus, this part of the opinion appears to be purely based on plaintiff’s subjective report
of lower back pain. AR 496. The ALJ properly found plaintiff’s subjective statements
were not entirely credible.
An opinion based solely on these subjective
statements is not entitled to weight. See Kirby, 500 F.3d at 709 (medical opinion relied
heavily on plaintiff’s subjective report of symptoms, which the ALJ found not credible).
Further, the ALJ noted that the other state agency medical experts disagreed with
Dr. Gibson’s opinion regarding plaintiff’s attention, concentration, and pace. AR 63. In
fact, they believed plaintiff had only mild difficulty in this area and could perform some
detailed instructions. AR 63, 117, 131, 150, 165.
The ALJ gave some, but not
controlling, weight to these opinions. AR 63.
The ALJ found a middle ground between these two opinions based on the entire
record, which he concluded supported moderate limitations in this area. AR 60, 63. The
record evidence supports this conclusion.
In fact, plaintiff’s mental examinations
repeatedly showed normal concentration and attention, despite depressive symptoms. AR
31, 42, 411, 421, 426, 432, 439, 480, 482, 543, 556, 590, 617, 622, 633, 648, 654,
695, 718, 722, 728. Plaintiff only occasionally reported mild difficulty with focus and
AR 423, 429, 436, 455, 470, 472-473.
Thus, the ALJ properly
considered Dr. Gibson’s opinion regarding plaintiff’s attention, concentration, and pace,
and gave it limited weight. AR 63.
The ALJ also properly considered Dr. Gibson’s opinion regarding plaintiff’s
anger. The ALJ did not deny that plaintiff’s temper itself was the result of a medical
Rather, the ALJ believed that the way in which plaintiff used his temper,
i.e., to intimidate others, was not medically related. AR 63. To support this conclusion,
the ALJ properly noted that plaintiff was able to participate in a bowling league and play
games and attend movies with friends, which showed that while plaintiff’s temper may
result from a medical condition, he could control when and for what purpose he used his
temper. Id. In addition, treating providers generally noted that while plaintiff was
diagnosed with impulse control disorder, his symptoms were generally managed, and he
exhibited good self-control. AR 436, 544, 558, 575, 618, 623, 649, 655, 670, 696, 723.
In fact, Dr. Gibson did not even indicate that plaintiff had an impulse control impairment.
Regardless, the ALJ, nonetheless, accounted for plaintiff’s anger by finding he
should work independently of others without the need to engage in much communication,
which could in turn lead to disagreements. AR 63. Also, the ALJ gave great weight to
the state agency medical experts’ opinions that “due to his temper and difficulty getting
along with others in the workplace,” plaintiff would do best in an environment with
minimal interpersonal contact. Id. The ALJ, accordingly, assessed an RFC that included
tasks that are performed without coordination and require no cooperation or interaction
with co-workers or the public. AR 60. In fact, the ALJ specifically said that he included
this limitation due to plaintiff’s “history of assaults and outbursts.” Id.
Finally, the ALJ did not disregard Dr. Gibson’s finding that plaintiff had a GAF
of 50. The ALJ specifically mentioned this finding. AR 62, 499. However, as the ALJ
noted, GAF scores from plaintiff’s treating providers routinely showed good functioning,
with scores in the 60s and 70s. AR 62, 411, 426, 432, 439, 473, 483, 543, 617, 649,
695, 722, 728. As this portion of Dr. Gibson’s report was inconsistent with the overall
medical evidence, the ALJ was not required to give it weight.
In sum, substantial evidence supports the ALJ’s specific, legitimate reasons for the
weight assigned to the consultative examiner’s opinion. The ALJ carefully took into account
plaintiff’s limitations, accepting medical opinion, but then carefully tailored jobs for plaintiff
consistent with these limitations instead of just declaring plaintiff disabled. This is the ALJ’s
job, and he seems to have done it well in this regard.
C. The ALJ Was Not Required to Recontact the Consultative Examiner
The ALJ was not required to recontact Dr. Gibson.
An ALJ is required to
recontact medical sources only if the available evidence does not provide an adequate
basis for determining the merits of the disability claim. Sultan v. Barnhart, 368 F.3d
857, 863 (8th Cir. 2004); 20 C.F.R. §§ 404.1512(e), 416.912(e), 404.919a(b);
As the ALJ noted, Dr. Gibson said that plaintiff’s depressive symptoms and back
pain impaired his capacity to maintain attention, concentration, and pace sufficient for
full-time work. AR 63, 499.
Dr. Gibson also said that plaintiff was most impaired in
interacting appropriately with others in a work environment. Id. However, Dr. Gibson
believed that plaintiff had the cognitive ability to respond adaptively to changes in the
workplace and was capable of remembering and understanding instructions, procedures,
and locations in a work setting. AR 399.
Thus, the ALJ properly noted that it was
unclear whether Dr. Gibson felt plaintiff could not work due to concentration or
interpersonal problems. AR 63. In fact, Dr. Gibson did not definitively say that plaintiff
was unable to perform any work at all. Rather, Dr. Gibson merely said that plaintiff’s
symptoms impaired some types of work activity (attention, concentration, and pace and
interacting with others), which the ALJ considered in his RFC assessment. The ALJ,
here, had sufficient evidence to make an informed decision, and thus, no further contact
with Dr. Gibson was required.
The ALJ Properly Measured Mess’ Subjective Allegations of Pain
Mess argues that the ALJ failed to evaluate his subjective allegations properly
within the framework established by the Commissioner’s regulations and Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). The court disagrees and finds that the ALJ
provided good reasons, supported by substantial evidence, for these credibility findings.
The Credibility Analysis
In determining a claimant’s credibility, the ALJ must consider:
the claimant’s daily activities;
the duration, intensity, and frequency of pain;
the precipitating and aggravating factors;
the dosage, effectiveness, and side effects of medication; and
any functional restrictions.
Polaski, 739 F.2d at 1322; see also 20 C.F.R. § 416.929(c)(3). “Other relevant factors
include the claimant’s relevant work history, and the absence of objective medical
evidence to support the complaints.” Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir.
2008) (quoting Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000)).
Although an ALJ may not discount a claimant’s subjective complaints solely
because they are unsupported by objective medical evidence, the lack of such evidence is
a factor the ALJ may consider. Halverson, 600 F.3d at 931-32; Ford v. Astrue, 518 F.3d
979, 982 (8th Cir. 2008). A claimant’s credibility is “primarily for the ALJ to decide,
not the courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). Thus, the
court must “defer to the ALJ’s determinations regarding the credibility of testimony, so
long as they are supported by good reasons and substantial evidence.” Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). An ALJ may discount a claimant’s
subjective complaints if there are inconsistencies in the record as a whole. Id. The ALJ
need not discuss each Polaski factor if the ALJ “acknowledges and considers the factors
before discounting a claimant’s subjective complaints.” Moore v. Astrue, 572 F.3d 520,
524 (8th Cir. 2009).
2. The Record in this Case Supports the ALJ’s Credibility Determination
The ALJ, here, found that plaintiff’s subjective complaints were not entirely
credible. AR 62. Plaintiff’s diagnosis of depression does not require the ALJ to find his
pain complaints entirely credible. Plaintiff’s reliance on Cox v. Apfel, in support of this
proposition, is misplaced. In that case, the claimant had undergone three back surgeries
and had a morphine pump implant.
Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998).
Here, plaintiff’s pain treatment was considerably more conservative and did not involve
surgery or an implant.
Thus, Cox is distinguishable and not controlling. Further, the
ALJ considered both plaintiff’s physical and mental impairments throughout his decision.
Despite plaintiff’s depression, the record, nonetheless, supports the ALJ’s credibility
The objective medical evidence did not support plaintiff’s allegations of disabling
pain. AR 63. The ALJ considered MRIs showing degenerative changes with disc
AR 63-64, 413.
However, the ALJ also considered that plaintiff’s
neurological examinations were normal. AR 64, 414, 442-443, 448. He had normal
gait, range of motion, and heel/toe walking. AR 64, 414, 443, 504, 448, 473, 482, 584.
His reported pain was generally no more than three on a ten-point scale. AR 542, 556,
574, 590, 618, 623, 635, 650, 656, 670, 696, 724, 729.
Plaintiff’s self-reported abilities were inconsistent with his pain complaints.
Specifically, plaintiff told a consultative examiner that he could climb ladders, kneel, and
crawl. AR 504.
He said he could lift up to one hundred pounds and carry twenty
pounds for a couple city blocks. AR 64, 505.
The ALJ properly considered plaintiff’s fibromyalgia. The ALJ found, based on
the evidence of record, that plaintiff’s fibromyalgia was not only a medically determinable
impairment, but was also a “severe” impairment at step two of the sequential evaluation
process. AR 58. However, plaintiff’s fibromyalgia diagnosis does not undermine the
ALJ’s credibility finding.
Collins ex rel. Williams v. Barnhart, 335 F.3d 726, 730 (8th
Cir. 2003) (diagnosis alone does not confer disability).
The ALJ considered SSR 12-
2p, pertaining to the evaluation of fibromyalgia, and did not discount plaintiff’s
fibromyalgia because of lack of trigger points. AR 64-65.
Rather, the ALJ properly
summarized the record, which showed that plaintiff’s rheumatologist diagnosed him with
fibromyalgia because there were no other positive tests, including trigger points, to
account for his pain. AR 64, 612. Thus, plaintiff has failed to establish reversible error.
In order for plaintiff to meet his burden of proving reversible error exists, he must show
that an alleged error was harmful and has a potential impact on the disposition of the case.
Shinseki v. Sanders, 556 U.S. 396, 409-410 (2009).
The ALJ considered that plaintiff’s activities were inconsistent with claims of
disabling pain. AR 64.
For example, he fished, went to movies, and played video
games with his friends. AR 64, 499.
his back. AR 498.
He said that bowling in a league did not bother
Plaintiff was also able to drive and shop in stores. AR 335.
even considered riding a horse. AR 731.
Such activities, especially riding a horse, are
inconsistent with disabling pain and weigh against plaintiff’s credibility.
F.3d at 852 (claimant’s credibility diminished by engaging in daily activities such as fixing
meals, doing housework, shopping for groceries, and visiting friends).
Although plaintiff later testified that he no longer bowled, he gave this testimony
after the Commissioner had already denied his claims citing his bowling league as one
piece of evidence supporting the decision. AR 87, 180. Plaintiff has not explained or
established that his pain worsened between the time he reported bowling to his treatment
providers and the time he denied bowling at the hearing.
The ALJ can be wary that
claimants attempt to present themselves in a worse light as their claims proceed through
the administrative denial process. Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir.
1995); Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997) (proper for ALJ to
consider claimant’s motivation).
The ALJ also considered a third-party function report from plaintiff’s mother. AR
65. She noted that plaintiff went bowling twice a week. AR 65, 327.
Notably, she did
not indicate that plaintiff’s conditions affected his ability to walk, sit, or stand. AR 65,
This report was inconsistent with the function report that plaintiff completed, in
which he alleged difficulties walking, sitting, and standing.
complaints may be discounted if there are inconsistencies in the evidence as a whole.
Wagner, 499 F.3d at 851.
For the reasons set forth herein, and without minimizing the seriousness of Mess’
impairments, the court RESPECTFULLY RECOMMENDS that the Commissioner’s
determination that Mess was not disabled be affirmed and that judgment be entered
against Mess and in favor of the Commissioner.
Objections to this Report and Recommendation in accordance with 28 U.S.C. §
636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the service
of a copy of this Report and Recommendation. Objections must specify the parts of the
Report and Recommendation to which objections are made, as well as the parts of the
record forming the basis for the objections. See Fed. R. Civ. P. 72. Failure to object to
the Report and Recommendation waives the right to de novo review by the district court
of any portion of the Report and Recommendation as well as the right to appeal from the
findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537 n.5 (8th
IT IS SO ORDERED this 16th day of May, 2016.
United States Magistrate Judge
Northern District of Iowa
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