Colbenson v. Astrue
Filing
16
MEMORANDUM OPINION AND ORDER: Based on the foregoing, and all the files, records, and proceedings: herein, IT IS HEREBY ORDERED that: 1. Plaintiff's Motion for Summary Judgment (Doc. No. 10 ), is DENIED; 2. Defendant's Motion for Summary Judgment (Doc. No. 14 ), is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion) Signed by Magistrate Judge Jeffrey J. Keyes on 09/11/2012. (MMP)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
David O. Colbenson,
Civ. No. 11-1353 (JJK)
Plaintiff,
v.
Michael J. Astrue,
Commissioner of Social
Security,
MEMORANDUM
OPINION AND ORDER
Defendant.
Jed. J. Hammell, Esq., Rippe Hammell & Murphy, PLLP, counsel for Plaintiff.
David W. Fuller, Esq., Assistant United States Attorney, counsel for Defendant.
JEFFREY J. KEYES, United States Magistrate Judge
Pursuant to 42 U.S.C. § 405(g), Plaintiff David O. Colbenson seeks judicial
review of the final decision of the Commissioner of Social Security (“the
Commissioner”), who denied Plaintiff’s application for disability insurance
benefits. This matter is before the Court on the parties’ cross-motions for
summary judgment. (Doc. Nos. 10, 14.) The parties have consented to this
Court’s exercise of jurisdiction over all proceedings in this case pursuant to
28 U.S.C. § 636(c), and Federal Rule of Civil Procedure 73. (Doc. Nos. 8, 9.)
For the reasons stated below, the Court denies Plaintiff’s motion and grants
Defendant’s motion.
1
BACKGROUND
I.
Procedural History
Plaintiff protectively filed an application for disability insurance benefits
(“DIB”) on January 9, 2006, alleging a disability onset date of January 1, 2003.
(Tr. 10.)1 His date last insured was March 31, 2003.2 (Tr. 23.) Plaintiff’s
application was denied initially and on reconsideration. (Tr. 67–71, 74–76.)
Plaintiff timely requested a hearing, which was held before an Administrative Law
Judge (“ALJ”) on September 18, 2008. (Tr. 77–78, 19-55.) On October 17,
2008, the ALJ issued an unfavorable decision. (Tr. 7–18.) Plaintiff sought review
of the ALJ’s decision, but the Appeals Council denied the request for review on
March 25, 2011. (Tr. 1–3.) The denial of review made the ALJ’s decision the
final decision of the Commissioner. See 42 U.S.C. § 405(g); Clay v. Barnhart,
417 F.3d 922, 928 (8th Cir. 2005); Browning v. Sullivan, 958 F.2d 817, 822–23
(8th Cir. 1992). On May 25, 2011, Plaintiff filed the instant action with this Court
seeking judicial review pursuant to 42 U.S.C. § 405(g). The parties have filed
cross-motions for summary judgment. See D. Minn. Loc. R. 7.2.
1
Throughout this Memorandum Opinion and Order, the abbreviation “Tr.” is
used to reference the Administrative Record (Doc. No. 7).
2
A claimant has to establish “the existence of a disability on or before the
date that the insurance coverage expires.” Basinger v. Heckler, 725 F.2d 1166,
1168 (8th Cir. 1984).
2
II.
Statement of Facts3
Plaintiff is a high school graduate and he completed one year of college.
(Tr. 141.) He is a Vietnam veteran. (Tr. 217.) After the war, he purchased a
dairy farm and managed it since 1971. (Tr. 137.) In 1995, Plaintiff was
diagnosed with mental illness, but he continued to work on his farm through his
alleged onset date of January 1, 2003. (Tr. 136.)
A.
Medical Evidence Received Before the Hearing
Plaintiff was admitted to St. Peter Regional Treatment Center (“St.
Peter’s”) on April 25, 1995, his fourth mental health hospitalization. (Tr. 215.) He
had recently stopped his antipsychotic medication, and his behavior became
bizarre, agitated, restless, paranoid, and delusional. (Tr. 215–16.) For example,
on April 24, 1995, the police were called to Plaintiff’s house after he struck his
wife in the face. (Id.) And Plaintiff also made a statement that sounded like a
threat against his wife. (Id.) On May 16, 1995, Plaintiff was court-committed as
mentally ill, and he gradually developed limited insight into his illness. (Tr. 204–
05.) On July 27, 1995, Plaintiff was discharged with a diagnoses of delusional
disorder, not otherwise specified (“NOS”) and rule out schizophrenia, chronic
paranoid type. (Tr. 203, 205.) He continued to receive case management
3
In his motion for summary judgment, Plaintiff challenges the ALJ’s
determination of his mental impairments and limitations only. Thus, the Court will
not summarize medical records related to Plaintiff’s physical complaints.
3
services from Winona County Human Services and psychiatric care from
Hiawatha Valley Mental Health Center. (Tr. 205.)
When Plaintiff saw Dr. George Planavsky at Hiawatha Valley Mental
Health Center on August 8, 1999, Dr. Planavsky saw no evidence of paranoia or
overt psychosis. (Tr. 544.) In November 1999, Plaintiff said he was having
financial difficulty, but there was no other change in his status. (Tr. 545.) Plaintiff
spoke very coherently, and Dr. Planavsky believed Plaintiff was doing well. (Id.)
Plaintiff was “very stable” on December 11, 2000, and felt his medication kept
him calm and functioning well. (Tr. 547.) Six months later, Plaintiff talked about
difficulties at his farm, but he was functioning well. (Tr. 548.) He was
comfortable with his medication, and appeared to be thinking clearly, with no
evidence of paranoia, agitation, or hostility. (Id.)
In October 2001, Dr. Planavsky found Plaintiff to be doing reasonably well,
with no overt evidence of psychosis. (Tr. 549.) In January 2002, Plaintiff
reported that was stressed because his wife was in the hospital, and he had
financial difficulties with his farm. (Tr. 550.) However, he felt his medication
would help him through difficult times. (Id.) Dr. Planavsky felt Plaintiff was doing
the best he could under adverse conditions. (Id.) In May 2002, Plaintiff was
separated from his wife and preoccupied with his farm work. (Tr. 551.)
However, Dr. Planavsky saw no overt evidence of psychosis and noted that
Plaintiff was followed by a public health nurse on a regular basis, and
Dr. Planavsky also read the nurse’s notes. (Id.)
4
Plaintiff had no symptoms when he saw Dr. Planavsky on August 5, 2002.
(Tr. 552.) He was spending positive time with his wife, and talked about his farm
and children. (Id.) When Plaintiff returned in November 2002, he reported
having some difficulties with his thought process after he was two weeks late in
getting his medication, which he received by injection. (Tr. 553.) He tried to
describe his thoughts about a political system having something to do with
horoscopes, but said he did not think about it when he got his medication on
time. (Id.) Plaintiff also reported that he was having great financial difficulties,
making no money in the dairy business. (Id.) Despite Plaintiff’s tremendous
stress, Dr. Planavsky noted that Plaintiff presented with organized thoughts and
no overt evidence of delusions, hallucinations, or paranoia. (Id.) Plaintiff stated
that he did not want Dr. Planavsky to increase his medication because it made
him drowsy, but he said his symptoms “stay[ed] out of his awareness” on his
current medication. (Id.)
On February 18, 2003, Plaintiff’s mental status again was clear with no
overt evidence of delusion, hallucination, or paranoid ideation. (Tr. 554.) His
farm was doing well, and his wife was returning. (Id.) At that time, Dr. Planavsky
agreed to decrease Plaintiff’s medicine. (Id.) In May 2003, Plaintiff told
Dr. Planavsky that he was facing the loss of his farm, but he should be in
reasonable financial shape after it sold. (Tr. 555.) He stated that he and his wife
were talking about buying a house and both working after the farm sold. (Id.)
Plaintiff asked for another decrease in his medication, and Dr. Planavsky agreed.
5
(Id.) After this visit, Dr. Planavsky stated, “[a]ll in all, I would say that he is
functioning pretty well right now.” (Id.)
Several months later, Dr. Planavsky noted that Plaintiff was doing very
well, and he was working out his financial difficulties in an orderly and thoughtful
manner. (Tr. 556.) Dr. Planavsky did not see any overt evidence of psychosis,
suspiciousness, paranoid ideation, delusion, or hallucinations. (Id.) Plaintiff’s
affect was bright, and his mood was euthymic. (Id.)
Plaintiff regressed in November 2003, and Dr. Planavsky was almost
certain the regression was caused by too much time between Prolixin4 injections.
(Tr. 557.) Plaintiff agreed to increase his injections to every two weeks. (Id.) He
had been having delusional thoughts of a conspiracy of grand proportions before
his medicine kicked in. (Id.) Plaintiff was back to his usual level of functioning on
December 15, 2003. (Tr. 558.) However, he reported having some bad side
effects from Prolixin, so Dr. Planavsky agreed to reduce his medication to
injections every three weeks. (Id.) Otherwise, Plaintiff seemed to be doing well,
and he was looking for employment because he was no longer making money on
his farm. (Id.)
Ten months later, when Plaintiff saw Dr. Planavsky on October 11, 2004,
his thinking was clear, and he had fewer worries. (Tr. 561.) In February 2005,
4
Prolixin, the generic version is fluphenazine, is an antipsychotic medication
used to treat schizophrenia and psychotics symptoms such as hallucinations,
delusions, and hostility. See http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0000603/.
6
Dr. Planavsky noted that Plaintiff’s thinking seemed clear and he talked about
some good things in his life. (Tr. 562.) In May 2005, Dr. Planavsky observed
that Plaintiff’s thinking continued to be clear and coherent, and in October 2005,
Plaintiff “seem[ed] to be doing fine.” (Tr. 254, 563.) Then, on February 13, 2006,
Plaintiff denied symptoms and side effects, and talked about his wife and
children. (Tr. 253.)
In January 2006, Plaintiff was evaluated by Michael Knapp, a social worker
at Tomah (LaCrosse) VA Medical Center. (Tr. 249–50.) On mental status
examination, Plaintiff was oriented with neutral mood, appropriate affect, intact
insight and judgment, unimpaired cognition, and normal speech. (Tr. 249.)
Plaintiff described his military service to Knapp, and explained that he was part of
a radar team in Vietnam that saw combat. (Id.) He reported that he began
having disturbing memories and dreams of combat soon after discharge. (Id.)
Plaintiff believed that financial stress from his farm caused his earlier nervous
breakdown and hospitalization. (Tr. 250.) He was experiencing regular incidents
of intrusive thoughts, disturbed sleep related to combat memories, and
nightmares. (Tr. 249.)
Plaintiff continued to tell Knapp about his Vietnam experiences at their next
session on February 10, 2006. (Tr. 512–14.) Plaintiff stated that he felt alienated
when he returned home from Vietnam and he did not talk to anyone about his
experiences because he did not think that anyone would understand. (Id.) He
explained that he was engaged before the war and married upon return, and that
7
within a few years, he bought a farm and worked in the dairy business. (Id.) He
had memories of Vietnam every day and frequent nightmares. (Id.) He had an
exaggerated startle response to loud noises and was hypervigilant in public. (Id.)
Knapp concluded that Plaintiff met the diagnosis for PTSD. (Tr. 514.) He also
diagnosed Plaintiff with psychotic disorder, NOS, and depressive disorder, NOS.
(Tr. 512.)
Plaintiff saw Knapp again on March 9, 2006. (Tr. 286.) At that time,
Plaintiff had completed filing his claim for PTSD, and felt less anxiety after
completing the stressor reports. (Id.) Plaintiff’s relationships were in good
standing, and he was sleeping better the past week. (Id.) At Plaintiff’s next
session with Knapp on May 11, 2006, Plaintiff reported that his condition had not
changed – he was experiencing the usual ups and downs, with particular stress
over his wife’s health. (Tr. 321.) One month later, Plaintiff’s condition was stable
and unchanged. (Tr. 310.)
Plaintiff saw Dr. Planavsky for a medication check on June 21, 2006.
(Tr. 325.) Plaintiff reported that things were going very well, and he expected to
get benefits for PTSD. (Id.) Plaintiff also continued to feel that his medication
worked well for him. (Id.) The next day, however, the Department of Veteran
Affairs issued a decision denying service connected disability for post traumatic
stress disorder and tardive dyskinesia. (Tr. 471–75.) The denial for PTSD
disability was based on Plaintiff’s failure to submit sufficient evidence regarding
stressful combat incidents. (Tr. 472.)
8
Upon visit with Dr. Planavsky on August 9, 2006, Plaintiff was “relatively
stable” but stressed about his wife’s decision to divorce him. (Tr. 309–10.)
Dr. Planavsky completed a Mental Residual Functional Capacity Questionnaire
regarding Plaintiff on August 14, 2006. (Tr. 293–97.) He diagnosed Plaintiff with
chronic paranoid schizophrenia, with a current GAF score of 50.5 (Tr. 293.) In
addition, Dr. Planavsky noted, “Mr. Colbenson has a serious & persistent mental
illness that is treated with antipsychotic medication[,] medicine helps with
symptoms, but, does not cure the illness.” (Id.) The questionnaire contained a
box listing signs and symptoms of mental illness, and Dr. Planavsky checked
many of the boxes. (Tr. 294.) The questionnaire also contained a chart listing
mental abilities and gave the following choices for rating the claimant’s abilities:
unlimited or very good, limited but satisfactory, seriously limited but not
precluded, unable to meet competitive standards, and no useful ability to
function. (Tr. 295–96.) Dr. Planavsky checked “unable to meet competitive
standards” for the following abilities: work in coordination with or proximity to
5
The Global Assessment of Functioning (“GAF”) scale, a point scale of 0 to
100, is used by clinicians to report an individual’s overall level of functioning.
Diagnostic and Statistical Manual of Mental Disorders “(DSM-IV-tr”) 32 (4th ed.
text revision 2000). Scores of 31–40 indicate some impairment in reality testing
or communication or major impairment in several areas such as work or school
or family relations, judgment, thinking or mood. Scores of 41–50 indicate serious
symptoms or any serious impairment in social, occupational or school
functioning. Scores of 51–60 indicate moderate symptoms or any moderate
impairment in social, occupational or school functioning. Scores of 61–70
indicate some mild symptoms or some difficulty in social, occupational, or school
functioning, but generally functioning pretty well, has some meaningful
interpersonal relationships. Id. at 34.
9
others without being unduly distracted; complete a normal workday or workweek
without interruptions from psychologically based symptoms; get along with coworkers or peers without unduly distracting them or exhibiting behavioral
extremes; deal with normal work stress; deal with stress of semiskilled and
skilled work; and interact appropriately with the general public. (Id.) In addition,
Dr. Planavsky anticipated that Plaintiff’s impairment or treatment would cause
him to be absent from work more than four days per month. (Tr. 297.)
Plaintiff saw Knapp again in September 2006, and showed some
improvement in stress from his divorce. (Tr. 308–09.) But in November 2006,
without activities to distract him, Plaintiff had intrusive memories about combat.
(Tr. 307.) Yet Plaintiff reported doing fine despite a tremendous amount of stress
on December 20, 2006, when he saw Dr. Planavsky. (Tr. 324.) At that time,
Dr. Planavsky stated, “I felt his thinking was clear, and there was no evidence of
paranoia or delusional thinking.” (Id.)
On February 14, 2007, Plaintiff underwent an initial evaluation for PTSD
with Dr. Brian Engdahl. (Tr. 463–67.) When asked what prompted him to apply
for service-connected disability, Plaintiff stated that he had a declining ability to
work his small farm, he had been under considerable financial stress for many
years, and he was encouraged by other veterans to apply for disability. (Tr. 463–
64.) Dr. Engdahl noted that there was no question that Plaintiff was exposed to
combat trauma and that he served honorably in sometimes dangerous
circumstances. (Tr. 464.) Plaintiff reported that his daily painful memories of
10
Vietnam were brief and not too distracting. (Id.) And in the winter months, he
could sleep largely without experiencing nightmares. (Tr. 465.) When it was
warm and humid in the summer, he would have nightmares many nights a week
and wake up frightened, thinking he was in Vietnam. (Id.) Dr. Engdahl noted
that Plaintiff’s sleep difficulties were variable and were also affected by drinking a
great deal of coffee. (Id.) Plaintiff denied irritability and being quick to anger.
(Id.) He complained of trouble concentrating but there was no evidence of that in
the interview. (Id.) Plaintiff also stated that he experienced hypervigilance and
exaggerated startle response, but he did not have significant avoidant behaviors
of things that reminded him of Vietnam. (Id.) However, Plaintiff did say that he
was very isolated since he returned from Vietnam, and he still avoided crowds.
(Tr. 466.)
Dr. Engdahl also reviewed Plaintiff’s daily activities. (Tr. 465.) Plaintiff
typically went into town in the morning for a meal and to talk to “the boys.” (Id.)
After doing a few chores at home, he went to the American Legion in the
afternoon. (Id.) Once a week, he would have a nice meal in town, talking to
whomever he encountered. (Id.) He watched the futures market and also tried
to walk two to five miles a day. (Id.) He listened to talk radio “24 hours per day”
and did some reading. (Id.) Plaintiff also took the MMPI-2, but the results were
not interpretable because he over-endorsed symptoms in such a way that might
suggest malingering. (Tr. 466.) Ultimately, Dr. Engdahl opined that Plaintiff’s
hypervigilance, startle response, and painful memories were “not particularly
11
disabling.” (Id.) He diagnosed Plaintiff with paranoid schizophrenia versus
paranoid delusional disorder in sustained partial remission, and assessed a GAF
score of 70. (Tr. 467.) Thereafter, the Department of Veterans Affairs denied
Plaintiff’s claim for service-connected PTSD disability on April 27, 2007.
(Tr. 476–84.)
Also in April 2007, Knapp opined that Plaintiff’s condition was about the
same. (Tr. 305–06.) At that time, Plaintiff’s divorce was unresolved, and he was
coping with financial stress. (Tr. 305.) But he was keeping busy with “the
business of the farm.” (Tr. 306.) On May 15, 2007, Dr. Planavsky noted that
Plaintiff’s current medication regimen “really seems to keep him symptom free.”
(Tr. 323.) Then, Knapp noted that Plaintiff’s condition was stable in June 2007,
after reaching a settlement with his wife over their divorce. (Tr. 305.) Plaintiff,
however, still reported daily flashbacks and nightmares about Vietnam, stating
that heat and darkness were triggers for his PTSD symptoms. (Id.) Plaintiff’s
condition remained stable in August 2007, but Plaintiff reported to Knapp that he
was increasingly upset about the Iraq war. (Tr. 304.) Plaintiff had no serious
problems to report in September 2007, but he was frustrated over delays with his
PTSD claim. (Tr. 304.)
Also in September, Dr. Planavsky remarked that
Plaintiff was “doing very well” and had no symptoms. (Tr. 322.) He reduced
Plaintiff’s medication and stated that Plaintiff would be watched closely for any
sign of regression. (Id.)
12
On November 8, 2007, Dr. Planavsky wrote a letter to Plaintiff’s attorney
regarding Plaintiff’s unsuccessful disability claim. (Tr. 439.) Dr. Planavsky wrote:
Mr. Colbenson, in my mind, is clearly a man who has had serious
and persistent mental illness with a diagnosis of chronic paranoid
schizophrenia. He, indeed, is an individual who tends to minimize
his problem; in fact, at times, he believes that everything he
experiences is more a factor of Agent Orange than a serious and
persistent mental illness. His chronic paranoid schizophrenia has
been present through most of his adult life and certainly he had
serious and persistent mental health issues prior to March 31, 2003.
While David can do well with his medications at times, there are also
times when he continues to have symptoms which I have outlined for
you previously.
(Id.)
Plaintiff saw Dr. Planavsky again on January 8, 2008. Dr. Planavsky
described Plaintiff as doing “very, very well,” and noted that he was relating with
clear, coherent thinking. (Tr. 573.) At this meeting, Plaintiff asked Dr. Planavsky
to talk with someone from the VA about his PTSD issues. (Id.) Thereafter,
Plaintiff’s medication was decreased, and in February 2008, Plaintiff was having
more symptoms. (Tr. 572.) Plaintiff, however, did not want to increase Prolixin
because it made him feel bad, but he agreed to try risperidone. (Id.)
On March 18, 2008, Dr. Planavsky wrote to the Washington County
Veteran Service Office in support of Plaintiff’s PTSD disability claim. (Tr. 565–
66.) He strongly concurred with Knapp’s diagnosis and documentation of
Plaintiff’s PTSD. (Id.) He also stated:
I know that David tends not to talk about his negative experiences or
about his difficulties in life and likes to put a brave face on things,
even when things are going very poorly in his life. I suspect he has
13
done this all of his adult life. Early on, after his return from service,
there is considerable evidence he tried to minimize, deny and avoid
the impact his experiences burdened him with. I in no way believe
that Mr. Colbenson would be confabulating or malingering in
reference to these issues.
(Tr. 566.)
In May 2008, Plaintiff reported that he had not taken risperidone, but his
thinking was clear and there was no evidence of overt psychosis, so
Dr. Planavsky determined it was okay if Plaintiff continued on the lower dose of
Prolixin. (Tr. 571.) Then, in July 2008, Dr. Planavsky received phone calls from
Plaintiff’s mother and Plaintiff’s public health nurse reporting that Plaintiff was
showing symptoms of mental illness. (Tr. 604.) Dr. Planavsky increased
Plaintiff’s dose of Invega6 to 6 mg per day. (Id.) There is no record of when
Invega was first prescribed but it appears to have been between May and July
2008.
During Plaintiff’s August 11, 2008 visit with Dr. Planavsky, Plaintiff said he
was taking his pills every day, and his thinking was clearer. (Tr. 570.) Plaintiff
reported that he recently spent a night in jail after breaking a restraining order
requiring him to stay away from his ex-wife’s apartment. (Id.) Plaintiff was
wearing soiled clothes and smelled of body odor. (Id.) His attitude was guarded,
and his mood and affect were anxious. (Id.) However, his speech and thought
processes were normal, and there was no evidence of hallucinations or
6
Invega is an atypical antipsychotic agent indicated for treatment of
schizophrenia. See http://www.pdr.net/drugpages/productlabeling.aspx
?mpcode=40220700.
14
delusions. (Id.) Plaintiff’s diagnoses remained delusional disorder, paranoid,
and PTSD. (Id.) Then, on September 2, 2008, Plaintiff told Dr. Planavsky that
the Invega was working well, he took it every day, and it did not make him feel
deadened and flat, as Prolixin had. (Tr. 569.) Plaintiff’s grooming was improved,
his thinking seemed clear, and he spoke rationally. (Id.) At that time,
Dr. Planavsky increased Plaintiff’s dosage of Invega. (Id.)
Shortly after Plaintiff’s hearing on his social security disability claim, he
underwent a competence evaluation for a criminal proceeding; the evaluation
was conducted by Dr. Kenneth Dennis on September 26, 2008.7 (Tr. 619–23.)
In his report, Dr. Dennis explained how PTSD that had resolved in the past could
become a new problem when immediate memory declined, and old memories
acted like they were recent. (Tr. 619.) Dr. Dennis stated, “Mr. Colbenson has
PTSD, early-impaired memory, and rigid thinking. At the time of assessment, he
still has the capacity to understand the criminal proceedings and participate in his
defense, but this capacity appears to be declining.” (Id.) He also reported that
Plaintiff’s recent medication change caused him to have feelings he had not
experienced for ten or fifteen years. (Id.) Dr. Dennis believed that Plaintiff
presented an increasing risk to others based on his rigid thinking and blaming
other people. (Id.) Ultimately, he opined that Plaintiff needed continued
neuroleptic medication and PTSD treatment to remain competent. (Id.)
7
The latest medical record described by the ALJ was dated September 2,
2008; therefore, it does not appear that the ALJ received Dr. Dennis’ evaluation
before issuing his decision. (Tr. 16.)
15
Regarding Plaintiff’s employment, Dr. Dennis noted that Plaintiff farmed for
more than thirty years, primarily focusing on dairy, but now on hay because it
was a niche that could withstand competition. (Tr. 621.) He also noted that
Plaintiff’s partial retirement provided him too much time to focus on PTSD
symptoms. (Id.)
As part of the evaluation, Plaintiff was given the following tests: Wide
Range Achievement Test; Grooved Pegboard; Automated Neuropsychological
Assessment Metrics; Stroop, Galvanic Skin Response; and Jesness Inventory.
(Id.) Plaintiff’s intelligence was estimated in the normal range, and his cognitive
functioning scores were within the below average range. (Id.) Plaintiff’s scores
also indicated memory deficits and lack of mental flexibility. (Tr. 622.)
Personality scores were elevated for inward focus and alienation. (Id.)
Dr. Dennis recommended evaluation for attention deficit disorder. (Id.) Plaintiff’s
impulse control was poor; there was a possibility of a mood disorder; and it was
unlikely that Plaintiff would seek help because he did not perceive people as
being supportive or understanding. (Tr. 623.) Dr. Dennis diagnosed Plaintiff with
PTSD with delayed onset and assessed a GAF score of 36. (Id.)
B.
Medical Evidence Submitted After the ALJ’s Decision
The ALJ issued an unfavorable decision on Plaintiff’s social security
disability claim on October 17, 2008. (Tr. 7.) The following medical records,
dated after the ALJ’s decision, were made part of the administrative record.
Therefore, the Court assumes that Plaintiff submitted these records to the
16
Appeals Council for consideration, and the Appeals Council considered them but
denied review.8
On February 3, 2009, Plaintiff saw Dr. Planavsky and reported that he felt
more alive and emotional on his current medication, whereas Prolixin made him
feel “half dead.” (Tr. 600.) Clinically, Plaintiff was clear and coherent. (Id.)
Thereafter, Dr. Planavsky wrote to Veterans’ Services on Plaintiff’s behalf on
March 18, 2009. (Tr. 618.) He reiterated that Plaintiff had PTSD secondary to
his Vietnam experience, and opined that the disability should be rated 70–100%
because it impacted all areas of Plaintiff’s life. (Id.)
On April 14, 2009, Plaintiff underwent a court-ordered psychological
evaluation with Dr. Bryan Delvin at Hiawatha Valley Behavioral Health Center
due to Plaintiff’s violation of a protection order and a stalking charge. (Tr. 611–
15.) At that time, Plaintiff was given the MMPI-2 personality test, which yielded
valid results. (Tr. 611.) The test results indicated symptoms of bizarre sensory
experiences combined with feelings of persecution, suspiciousness, chronic
feelings of being mistreated, and paranoid thinking at times. (Id.) Dr. Delvin
noted that treatment prognosis was poor due to difficulty with self-disclosure.
8
The Appeals Council’s Order, which typically lists newly submitted
evidence considered by the Appeals Council, is missing from the administrative
record, but there is a cover letter from Plaintiff’s counsel to the Appeals Council
stating new evidence was enclosed. (Tr. 1–3, and see Tr. 198–200.) Plaintiff
does not contend that the Appeals Council failed to consider new material
evidence submitted to it. Therefore, this issue is waived. See Pelkey v.
Barnhart, 433 F.3d 575, 580 (8th Cir. 2006) (finding issue not articulated before
the district court was waived).
17
(Id.) With respect to the violation of the protective order, Plaintiff stated that he
happened to see his wife on the street and wanted to talk to her about a bill he
received. (Tr. 612–13.) Plaintiff also explained that the stalking charge related to
occasions when he went to his ex-wife’s house to discuss the divorce settlement.
(Tr. 613.) On one occasion they argued, and he kicked over a flower box. (Id.)
After this, he tried calling her several times. (Id.)
On mental status examination, Plaintiff was oriented, of average
intelligence, had intact judgment, insight and memory, was relevant and
organized, and had coherent thought process and euthymic affect. (Tr. 614.)
Plaintiff referred to people having special abilities and gifts allowing them to
sense different things. (Id.) This was seen as a schizotypal tendency. (Id.)
Dr. Delvin stated the following in his report:
Current MMPI-2 and treatment record data is congruent with a
diagnosis of Schizophrenia, Paranoid Type with acute symptoms
presently being well controlled via medication. Despite this, the
client does present with tendencies towards interpersonal
suspiciousness and anxious avoidance related to past trauma.
There does not appear to be a strong history of impulsive
aggression or control issues within relationships. The client’s
adjustment following divorce is seen as having been complicated by
the features of his mental illness, especially where interpersonal
suspiciousness is concerned, resulting in poor judgment and
associated problematic behavior.
(Id.) Dr. Delvin recommended outpatient psychiatric services, medication
compliance, and group therapy for veterans. (Tr. 615.)
Thereafter, Plaintiff was screened for veterans’ group therapy by licensed
social worker David Fruehling at Hiawatha Valley Mental Health Center.
18
(Tr. 594.) Plaintiff reported PTSD symptoms of flashbacks, sleeplessness, and
intrusive memories. (Id.) Fruehling recommended that Plaintiff try attending
group. (Id.) Plaintiff attended three groups, and then chose to proceed with
individual therapy only. (Tr. 589, 591, 593.) On July 8, 2009, the Department of
Veterans Affairs increased Plaintiff’s disability rating for PTSD from 50% to
100%. (Tr. 625–32.)9
On January 5, 2010, Plaintiff attended therapy with Fruehling and reported
being moderately anxious with occasional flashbacks of trauma. (Tr. 586.)
Plaintiff was required to participate in therapy by his probation officer, and
Plaintiff admitted to problems with socialization. (Id.) Two weeks later, Plaintiff
reported that he did not believe he needed therapy, but Fruehling reminded him it
was required to satisfy the court. (Tr. 585.) At that time, Plaintiff reported
moderate anxious mood and occasional flashbacks of trauma. (Id.)
Dr. Planavsky completed a Mental Residual Functional Capacity
Questionnaire regarding Plaintiff on February 2, 2010. (Tr. 635–40.) He
diagnosed Plaintiff with chronic paranoid schizophrenia and assessed a GAF
score of 45 over the past year. (Tr. 635.) Dr. Planavsky noted that since he had
known Plaintiff, Plaintiff functioned in the GAF score range of 35–45. (Id.) The
questionnaire contained a list of signs and symptoms, and Dr. Planavsky
checked many of them. (Tr. 636.)
9
Plaintiff was rated 50% disabled by service-connected PTSD with paranoid
delusional disorder versus paranoid schizophrenia on November 4, 2008
(Tr. 627), but the rating decision is not in the Administrative Record.
19
The questionnaire also contained a list of mental abilities, and
Dr. Planavsky rated Plaintiff’s mental abilities in the following areas as seriously
limited but not precluded: work in coordination with or proximity to others without
being unduly distracted; complete a normal workday and workweek without
interruptions from psychologically based symptoms; perform at a consistent pace
without an unreasonable number and length of rest periods; accept instructions
and respond appropriately to criticism from supervisors; get along with coworkers or peers without unduly distracting them or exhibiting behavioral
extremes; deal with normal work stress; understand, remember, and carry out
detailed instructions; deal with stress of semiskilled work; interact appropriately
with the general public; and maintain socially appropriate behavior. (Tr. 637–38.)
Dr. Planavsky opined that Plaintiff would be likely to miss four or more days of
work per month due to his mental impairments. (Tr. 639.) He also believed that
Plaintiff had these limitations since they met in 1997. (Tr. 640.)
III.
Testimony at the Administrative Hearing
Plaintiff’s Testimony
Plaintiff testified to the following at the hearing before the ALJ on
September 18, 2008. (Tr. 19.) At the time of the hearing, Plaintiff was still trying
to manage his farm but he did not do physical work. (Tr. 27.) He had 103 acres
of farm land, having sold part of his land in 2003. (Id.) His farm was in a
government program, and the primary income came from hay production.
20
(Tr. 29.) But Plaintiff did not do his own hay cutting. (Tr. 30.) Plaintiff thought
his 2007 gross income was $20,000 to $30,000. (Tr. 36.)
For the last three years, Plaintiff was treated with oxycodone for pain in his
legs, having previously taken large doses of over-the-counter medication.
(Tr. 32.) Plaintiff also suffered flashbacks from Vietnam that were triggered by
hot weather. (Tr. 35.) In addition, he testified that his ability to work had been
diminished for a long time and he felt he no longer had any ability to work.
(Tr. 42.)
Plaintiff has four daughters, only one of whom would speak to him.
(Tr. 35.) Plaintiff was more comfortable by himself than around other people.
(Tr. 37.) He recently went to his parents’ anniversary party but left in anger. (Id.)
He believed his prior medication made him brain dead and unfeeling, and his
new medication allowed him to feel emotions. (Id.)
Plaintiff usually ate his meals in town because he liked to overhear
conversations of others. (Tr. 38.) He felt he would go crazy if he were alone all
the time. (Id.) On occasion, but not regularly, he sat with others for his meals.
(Id.) Plaintiff stated that he had a good relationship with Dr. Planavsky, but he
did not always tell Dr. Planavsky about his problems. (Tr. 41.)
Plaintiff went to jail after breaking a restraining order his ex-wife had
against him. (Tr. 41–42.) He stated that they were arguing over whether Plaintiff
would pay spousal maintenance in a lump sum or spread out over four years.
(Tr. 41.) Plaintiff changed his mind about refusing to pay a lump sum and went
21
to see his wife. (Id.) She locked the door and would not let him in. (Tr. 42.) He
then kicked over her flower box, and he was arrested. (Id.)
Medical Expert Testimony
Dr. Mary Louise Stevens testified as a medical expert at the hearing.
(Tr. 42–43.) She noted that Plaintiff’s social worker diagnosed him with PTSD,
but she could not find a clear, comprehensive PTSD evaluation in the record.
(Tr. 43–44.) She testified that simply due to the nature of his diagnoses, at
various times paranoid schizophrenia, psychotic disorder NOS, and paranoid
delusional disorder, Plaintiff’s daily activities would be mildly impaired, social
functioning would be moderately impaired, and concentration, persistence, or
pace would be moderately impaired. (Tr. 43, 46.) However, Dr. Stevens stated
that the records indicated that Plaintiff would not meet or equal any listing during
the relevant time period. (Tr. 46.) Dr. Stevens opined Plaintiff would be limited
to simple, repetitive, unskilled work duties, brief and superficial contact with
others, and a low stress work environment. (Id.) Low stress meant no high
production requirements. (Id.)
Dr. Stevens disagreed with Dr. Planavsky’s assessment of Plaintiff’s ability
to work, as described in exhibits 10F, 14F, and 16F. (Tr. 47.) Dr. Stevens
believed medication “can go a long way” with treating chronic paranoid
schizophrenia. (Tr. 47–48.) She disagreed with Dr. Planavsky that Plaintiff could
not meet competitive standards in dealing with normal work stress because
Dr. Planavsky’s notes indicated that Plaintiff’s illness was well controlled with
22
taking medication at three-week intervals. (Tr. 48.) Dr. Stevens also found
evidence that Plaintiff expressed his thoughts to Dr. Planavsky; in other words,
he did not always hide his problems. (Tr. 48–49.)
Vocational Expert Testimony
Wayne Onkin testified at the hearing as a vocational expert. (Tr. 49.) The
ALJ asked the vocational expert a hypothetical question about the type of work a
person with the following characteristics could perform: 53–59 years-old; thirteen
years education; work experience outlined by the vocational expert; impairments
described by the medical expert with varying diagnoses of paranoid
schizophrenia, psychotic disorder, and delusional disorder; PTSD mentioned in
the record; peripheral neuropathy; limited to simple, repetitive, unskilled work
tasks with brief, superficial contacts with others in a work setting with rather lowstress work, that is, precluding high production goals such as working on an
assembly line. (Tr. 50–51.) The vocational expert testified that such a person
could not perform Plaintiff’s past relevant work but could perform other work such
as General Farm Worker,10 Night Cleaner,11 and Cleaner 2.12 (Tr. 51–52.) If the
ALJ added a restriction of medium exertional work to the first hypothetical
10
As defined in the Dictionary of Occupational Titles (“DOT”) Code 421.687010, there are about 2,000 such jobs in Minnesota.
11
As defined in the DOT Code 323.687-018, there are at least 2,000 such
jobs in Minnesota.
12
As defined in the DOT Code 919.687-014, there are at least 1,000 such
jobs in Minnesota.
23
question, the vocational expert testified that only the Cleaner 2 job would apply.
(Tr. 52.) The Cleaner 2 job could be performed if the individual were also
precluded from using repetitive foot pedals. (Id.) The vocational expert testified
that all work would be precluded if an additional restriction were added that the
individual would be absent from work more than three days per month. (Tr. 53.)
The VE agreed that, given the limitations described by Dr. Planavsky, such a
person could not meet competitive standards in dealing with work stress, even in
the jobs identified by the vocational expert. (Id.) The same was true of a person
who would be unable to complete a normal workday and workweek without
interruption from psychologically based symptoms. (Tr. 53–54.)
IV.
The ALJ’s Findings and Decision
On October 17, 2008, the ALJ issued a decision concluding that Plaintiff
was not under a disability, as defined in the Social Security Act, at any time from
the alleged onset date of January 1, 2003, through the date of the decision.
(Tr. 17–18.) The ALJ followed the five-step procedure for determining whether
an individual is disabled. See 20 C.F.R. § 404.1520(a). At step one, the ALJ
found that Plaintiff did not engage in substantial gainful activity during the period
from his alleged onset date of January 1, 2003, through his date last insured of
March 31, 2003. (Tr. 12.)
At the second step of the evaluation, the ALJ determined that Plaintiff had
a severe impairment of paranoid schizophrenia. (Id.) But the ALJ found that
Plaintiff did not have a severe impairment of PTSD for the following reasons:
24
Plaintiff did not meet the military requirement of proving combat exposure (Tr. 12
(citing Exhibit 15F/2-3)); Plaintiff failed to provide the VA with a written list of his
stressors (Id.); Plaintiff failed to report for his VA evaluation (Id.); Plaintiff never
had a comprehensive PTSD evaluation (Id.); and the medical expert had noted
that Plaintiff was doing so well on his medications that he wanted to cut back.
(Id.)
At step three of the disability determination procedure, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 C.F.R., Part 404, Subpart
P, Appendix 1. (Tr. 13–14.) Although Plaintiff met the “A criteria” for Listing
12.03, Schizophrenic, Paranoid and Other Psychotic Disorders (Tr. 13), he did
not meet the “B criteria” of the listing, which require that the impairment result in
at least two of the following: marked restriction in activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation,
each of extended duration. (Id.) The ALJ concluded that Plaintiff had mild
restrictions in activities of daily living because he was independent with dressing,
grooming, driving, and chores. (Id.) Plaintiff had only mild difficulties in
maintaining social functioning because he went to town to dine and visit with
friends. (Id.) Plaintiff also had only mild difficulties in maintaining concentration,
persistence, or pace because his thinking was clear. (Id.) And Plaintiff had one
or two episodes of decompensation because he was hospitalized. (Id.) The ALJ
25
found no evidence that Plaintiff met the “C criteria” of the listing because he
“does not have marginal adjustment, and does not have the inability to function
outside a highly supportive living arrangement.” (Id.)
The ALJ determined at step four that Plaintiff had the RFC to perform a full
range of work at all exertional levels but with the following nonexertional
limitations: limited to simple, repetitive, unskilled work tasks; limited to brief,
superficial contact with other people; limited to low stress jobs and low
productivity expectations (i.e., no assembly line work). (Tr. 14.) The ALJ also
concluded that Plaintiff could not perform his past relevant work. (Tr. 16.)
At step five of the disability determination, based on the vocational expert’s
testimony, the ALJ found that there were other jobs that existed in significant
numbers in the national economy that Plaintiff could perform, including farm
worker, night cleaner, and cleaner. (Tr. 17.)
DISCUSSION
I.
Standard of Review
Congress has prescribed the standards by which Social Security disability
benefits may be awarded. “Disability” under the Social Security Act means 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). “An individual shall be
determined to be under a disability only if his physical or mental impairment or
26
impairments are of such severity that 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 the national economy.”
42 U.S.C. § 423(d)(2)(A).
The claimant bears the burden of proving his or her entitlement to
disability insurance benefits under the Social Security Act. See 20 C.F.R.
§ 404.1512(a); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000); Thomas
v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has
demonstrated that he or she cannot perform past work due to a disability, “the
burden of proof shifts to the Commissioner to prove, first that the claimant retains
the residual functional capacity to do other kinds of work, and, second that other
work exists in substantial numbers in the national economy that the claimant is
able to do.” Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).
Courts must affirm the ALJ’s findings if supported by substantial evidence
in the record. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). “Substantial
evidence is relevant evidence that a reasonable mind would accept as adequate
to support the Commissioner’s conclusion.” Id. (quotations omitted). The Court
must consider evidence that supports and detracts from the ALJ’s decision. Id.
(citations omitted). After reviewing the evidence, if it is possible to draw two
inconsistent positions from the evidence, and one of those positions is that of the
ALJ, the court must affirm the ALJ. Id. (citations omitted).
27
II.
Analysis of the ALJ’s Decision
A.
New evidence submitted to the Appeals Council
Plaintiff fails to distinguish between evidence submitted to the ALJ before
the ALJ issued his decision, and new evidence submitted to the Appeals Council
after the ALJ’s decision. The distinction is important for two reasons. First, the
Court has a different standard of review for evidence submitted to and
considered by the Appeals Council. When the Appeals Council considers new
and material evidence but denies review, the Court’s task is to determine
whether the record as a whole, including the new evidence, supports the ALJ’s
determination. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).
Second, the “timing of an examination is not dispositive of whether evidence is
material; medical evidence obtained after an ALJ decision is material if it relates
to the claimant’s condition on or before the date of the ALJ’s decision.” Id. at
502. Evidence that either pre-dates or post-dates the relevant time period should
be addressed to determine whether the evidence related to conditions that
existed during the relevant time period. Id. The Court will apply this standard in
its review. See Browning v. Sullivan, 958 F.2d 817, 823 (8th Cir. 1992)
(concluding new evidence submitted to Appeals Council did not change court’s
determination that substantial evidence supported the ALJ’s final decision).
B.
Whether Plaintiff met or equaled a listed impairment
Plaintiff contends that he meets Listing 12.03 for paranoid schizophrenia
and Listing 12.06 for PTSD. The Listing of Impairments describe, for each of the
28
major body systems, impairments considered to be severe enough to prevent an
individual from performing any gainful activity regardless of his age, education, or
work experience. 20 C.F.R. § 404.1525(a). An impairment meets the
requirements of a listing “when it satisfies all of the criteria of that listing,
including any relevant criteria in the introduction, and meets the duration
requirement.” Id. § 404.1525(c)(3).
1.
Listing 12.03: Schizophrenic, Paranoid, and Other
Psychotic Disorders
The medical expert testified that Plaintiff meets the A criteria of Listing
12.03 (Tr. 45); the dispute is over whether Plaintiff met the B or C criteria, either
one of which, in addition to the A criteria, would satisfy the listing requirements.
20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.03. To establish the B criteria,
Plaintiff must show that his mental impairment resulted in at least two of the
following: marked restriction in activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended
duration.13 Id. § 12.03(B).
Plaintiff contends that he is markedly limited in daily activities, social
functioning, and concentration, persistence, or pace, as evidenced by
13
Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning. 20 C.F.R.,
Part 404, Subpart P, Appendix 1, § 12.00C(4). The phrase “each of extended
duration” means three episodes within one year, or an average of once every
four months, each lasting for at least two weeks. Id.
29
Dr. Planavsky’s opinion in the mental residual functional capacity questionnaire
dated August 14, 2006. The Commissioner argues that Plaintiff did not meet the
“B criteria” for Listing 12.03 because he could take care of himself and his
household chores and go out with friends; thus, he was not markedly limited in
any of the first three categories.
Keeping in mind that the relevant time period for Plaintiff’s claim is only
three months—January 1, 2003, through March 31, 2003—substantial evidence
in the record supports the ALJ’s determination that Plaintiff was not markedly
limited in daily activities, social functioning, or concentration, persistence, or pace
during that period. The most relevant evidence is the one treatment record
during that period. On February 18, 2003, Plaintiff was compliant with his
medication and did not report or exhibit any symptoms during his visit with
Dr. Planavsky. (Tr. 554.) And Plaintiff said his farm was doing well. (Id.) In fact,
Dr. Planavsky agreed to decrease Plaintiff’s medication, instructing Plaintiff to
call if he did not function as well on less medication. (Id.)
Going back one year from the alleged onset date to January 2002, Plaintiff
was stressed at that time because his wife was in the hospital, and he had
financial troubles. (Tr. 550.) Plaintiff did not exhibit or report any symptoms to
Dr. Planavsky, and Plaintiff said he felt his medication would help get him
through the difficult time. (Id.) Plaintiff was preoccupied with his farm work in
May 2002, and had no symptoms then or in August 2002. (Tr. 551–52.) In
November 2002, Plaintiff reported some unusual thoughts occurring after he was
30
late getting his medication, but Dr. Planavsky saw no evidence of symptoms, and
Plaintiff said his symptoms “stayed out of his awareness” on his current
medication. (Tr. 553.)
In May 2003, two months after Plaintiff’s date last insured of March 31,
2003, despite his financial stress, Plaintiff was functioning well and planning to
sell his farm and get a job. (Tr. 555.) Again, Plaintiff asked for a decrease in
medication and Dr. Planavsky agreed. (Id.) According to Dr. Planavsky, Plaintiff
exhibited no symptoms and was doing very well in August 2003. (Tr. 556.)
Plaintiff had symptoms of delusional thoughts of a grand conspiracy when he did
not get his medications on time in November 2003. (Tr. 557.) But Plaintiff’s
delusional thoughts were already diminishing by the time he saw Dr. Planavsky,
and he agreed to increase his medication. (Id.) Plaintiff was back to his usual
functioning by December 15, 2003, and Dr. Planavsky decreased his medication
again. (Tr. 558.) At that time, Plaintiff again looked for employment. (Id.) By
October 2004, Plaintiff’s thinking was clear, and he had fewer worries. (Tr. 561.)
In fact, Plaintiff did not report any mental health related symptoms until January
2006, when he was evaluated for PTSD. (Tr. 249–50.)
Including the one year before and almost three years after the relevant
time period, the record does not support Plaintiff’s contention that he suffered
marked limitation in activities of daily living, social functioning, or maintaining
concentration, persistence, or pace. It was not until 2008, when Plaintiff was
arrested for violating a protective order and stalking his ex-wife, prompted by
31
disagreements over their divorce settlement, that Plaintiff exhibited marked
limitations in functioning. During the relevant time period, there is no indication
that Plaintiff could not perform his regular daily activities, get along with others,
and concentrate and persist in mental tasks.
Plaintiff asserts that he did not always share his difficulties with his mental
health providers, and that may be true; he may have experienced unreported
symptoms that were not obvious to his mental health providers during or near the
relevant time period. However, if two conclusions can be drawn from the
evidence, and one of those conclusions is that reached by the ALJ and it is
supported by substantial evidence, the Court must affirm the ALJ. Heino v.
Astrue, 578 F.3d 873, 879 (8th Cir. 2009) (quoting Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005)). That is the case here.
Plaintiff also alleges he meets the C criteria of Listing 12.03. To meet the
C criteria of the listing, Plaintiff must establish:
Medically documented history of a chronic schizophrenic, paranoid,
or other psychotic disorder of at least 2 years’ duration that has
caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication
or psychosocial support, and one of the following:
1.
Repeated episodes of decompensation, each of extended
duration; or
2.
A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or
32
3.
Current history of 1 or more years’ inability to function outside
a highly supportive living arrangement, with an indication of
continued need for such an arrangement.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.03(C).
Plaintiff was under a great deal of stress leading up to and shortly after his
alleged period of disability because he faced selling the farm where he had
worked for thirty years, his wife had been in the hospital, and then he and his
wife were separated for a short time. However, this stress did not cause Plaintiff
to decompensate. Not taking his medication on time caused Plaintiff to briefly
have symptoms, but not with the frequency or duration to establish the C criteria.
And there is no evidence to suggest that Plaintiff was unable to function outside a
highly supportive living arrangement. Plaintiff lived and worked on his farm in
2003, he was usually compliant with his psychotic medication, and he was not
hospitalized since 1995. In sum, substantial evidence in the record supports the
ALJ’s determination that Plaintiff did not meet or equal Listing 12.03.
2.
Listing 12.06: Anxiety Related Disorders
Plaintiff also contends that the ALJ failed to consider and determine that he
met Listing 12.06 for PTSD. The Commissioner argues the ALJ addressed
evidence of PTSD and gave good reasons for finding it was not a severe
impairment. Again, the parties focus on whether Plaintiff met the B or C criteria
of the listing.
“There is no error when an ALJ fails to explain why an impairment does not
equal one of the listed impairments as long as the overall conclusion is supported
33
by the record.” Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011). A
claimant must meet the A criteria and either the B or the C criteria to establish a
listing level impairment under § 12.06. 20 C.F.R., Part 404, Subpart P, Appendix
1, § 12.06. The B criteria for Listing 12.06, Anxiety Related Disorders, are the
same as the B criteria for Listing 12.03. Paragraph C requires that the
impairment results in complete inability to function independently outside the
area of one’s home.
Plaintiff contends that he suffers PTSD, citing treatment records from
social worker Michael Knapp, a September 28, 2008 competency evaluation in a
criminal proceeding, and a July 8, 2009 100% VA disability rating for PTSD.
Plaintiff argues that the ALJ erred by relying on an earlier VA record, where
Plaintiff did not provide the VA with sufficient evidence to establish PTSD.
Plaintiff also relies on Dr. Planavsky’s responses on the August 14, 2006 mental
residual functional capacity questionnaire to establish that he met the A, B, and C
criteria for Listing 12.06.
The Commissioner points out that the favorable VA decision came after
several rejections by the VA of Plaintiff’s claim, and the favorable decision was
more than six years after Plaintiff’s date last insured. Thus, the Commissioner
argues that during and shortly after Plaintiff’s date last insured, evidence
supports the ALJ’s finding that Plaintiff did not have a severe impairment of
PTSD.
34
For the same reasons that Plaintiff did not meet the B criteria for Listing
12.03 during the relevant time period, Plaintiff also failed to establish that he met
the same B criteria for Listing 12.06. Plaintiff first applied for service-connected
PTSD disability in 1995, and the VA denied his claim in 1996. (Tr. 441–44.)
Plaintiff neither reported PTSD symptoms nor sought treatment for PTSD until
January 2006, three years after the relevant time period for his social security
disability claim. When Plaintiff underwent a PTSD evaluation at the VA in
February 2007, he reported that among the reasons for why he applied for VA
disability was because he was under considerable financial distress for years and
other veterans encouraged him to apply for disability. (Tr. 463–64.) Dr. Engdahl,
who performed the evaluation, noted that Plaintiff said his daily painful memories
of Vietnam were brief and not too distracting. (Tr. 464.) And although Plaintiff
often had nightmares of Vietnam and had difficulty sleeping during warm
weather, Plaintiff admitted that he could usually return to sleep with relative ease
unless he was on a “coffee binge.” (Tr. 465.) Overall, Dr. Engdahl did not find
Plaintiff’s PTSD symptoms to be significantly interfering with his life, noting that
Plaintiff went into town to eat and socialize every day. (Id.) Additionally,
Plaintiff’s scores on the MMPI-2 personality test were invalid and suggested
Plaintiff over-endorsed symptoms. (Tr. 466.)
Plaintiff’s VA disability claim was denied in April 2007. (Tr. 476–84.) After
that, Plaintiff reported greater PTSD symptoms (Tr. 304, 305), but at other times
reported no symptoms. (Tr. 304, 322.) On May 15, 2007, Dr. Planavsky noted
35
that Plaintiff’s current medication regimen “really seems to keep him symptom
free.” (Tr. 323.) Dr. Planavsky did not distinguish between Plaintiff’s psychotic
symptoms or PTSD symptoms. Furthermore, Dr. Planavsky never mentioned
PTSD in any of his treatment records before January 2008, when Plaintiff asked
him to coordinate with the VA. (Tr. 573.) Therefore, substantial evidence in the
record supports the ALJ’s conclusion that Plaintiff did not have a severe mental
impairment of PTSD during the first three months of 2003.
Evidence submitted to the Appeals Council after the ALJ’s decision,
including the 100% VA disability determination for PTSD and evaluations of
Plaintiff by Dr. Dennis and Dr. Delvin, do not overcome the substantial evidence
in the record supporting the ALJ’s decision. Dr. Dennis evaluated Plaintiff in
September 2008 and explained how PTSD, having resolved in the past, could
resurface when a person’s immediate memory declined. (Tr. 619.) Dr. Dennis
stated, “Mr. Colbenson has PTSD, early-impaired memory, and rigid thinking. At
the time of assessment, he still has the capacity to understand the criminal
proceedings and participate in his defense, but this capacity appears to be
declining.” (Id.) Dr. Dennis’ explanation suggests that Plaintiff had PTSD that
had resolved but resurfaced due to his early-impaired memory. Because
Plaintiff’s memory was only “early-impaired,” as determined by testing Plaintiff
underwent at that time, substantial evidence in the record does not support
Plaintiff’s contention that he met Listing 12.06 for PTSD five years earlier.
36
Dr. Delvin’s evaluation of Plaintiff in April 2009 likewise fails to establish
that Plaintiff met Listing 12.06 during the relevant time period. Dr. Delvin found
Plaintiff’s acute symptoms to be controlled by medication (Tr. 614), which is
consistent with the treatment records near the relevant time period at issue here.
Dr. Delvin did not find a strong history of Plaintiff acting on impulsive aggression
or having control issues within relationships. (Id.) As Dr. Delvin noted, Plaintiff’s
adjustment to his divorce was complicated by his tendency to be suspicious,
resulting in poor judgment with respect to dealings with his ex-wife. (Tr. 614–15.)
Plaintiff and his wife were married and getting along during the short time period
relevant here. (Tr. 554–55.) Nothing in Dr. Delvin’s evaluation suggests that
Plaintiff was markedly impaired in 2003 by PTSD and/or paranoid schizophrenia
symptoms. Furthermore, substantial evidence in the record does not support
Plaintiff’s assertion that he met the C criteria of Listing 12.06 in 2003, which
included a complete inability to function independently outside the area of one’s
home. Plaintiff lived and worked on his farm in 2003, and received fairly
infrequent psychiatric medication management.
C.
Whether the ALJ’s RFC determination is supported by
substantial evidence in the record
A claimant’s RFC is what he or she can do despite his or her limitations.
20 C.F.R. § 404.1545(a)(1). In determining a claimant’s RFC, the ALJ must
consider all relevant evidence and evaluate the claimant’s credibility. Guilliams
v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). The ALJ must consider every
37
medical opinion in the record. 20 C.F.R. § 404.1527(c). If a treating physician’s
opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence,
it is given controlling weight. Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir.
2012). “However, ‘[a] treating physician’s opinion does not automatically control,
since the record must be evaluated as a whole.’” Id. (quoting Perkins v. Astrue,
648 F.3d 892, 897 (8th Cir. 2011). An ALJ can discount or disregard a treating
physician’s opinion if other medical opinions are supported by better or more
thorough medical evidence or if the treating physician renders inconsistent
opinions. Id.
1.
Whether the ALJ failed to give appropriate weight to
Dr. Planavsky’s opinion
Plaintiff asserts that the ALJ should have adopted the treating physician’s
opinion that Plaintiff’s impairments would result in him missing more than four
days of work per month, and that he could not complete a normal workday and
workweek without interruption from psychologically based symptoms. In addition
to the questionnaire that Dr. Planavsky completed in August 2006, Plaintiff cites
Dr. Planavsky’s November 8, 2007 disability opinion letter to Plaintiff’s attorney,
and Dr. Planavsky’s March 18, 2009 letter to the VA supporting Plaintiff’s PTSD
disability rating at 70 to 100%. Plaintiff concludes that the exceptions to the
treating physician controlling weight rule are not present here.
38
Plaintiff also contends that the ALJ’s reliance on the medical expert’s
opinion as the basis for the RFC determination was improper because a
nonexamining physician’s opinion does not generally constitute substantial
evidence. Plaintiff asserts that Dr. Steven’s opinion should not have been
granted substantial weight because she did not have the benefit of reviewing the
VA 100% disability determination. In addition, Plaintiff contends that the ALJ’s
RFC determination was not consistent with Plaintiff’s daily activities, because his
activities were not equivalent to the ability to engage in gainful activity.
The Commissioner asserts that the ALJ gave good reasons for rejecting
Dr. Planavsky’s opinions – primarily that his treatment notes overwhelmingly
contradicted his opinions. Specifically, the Commissioner asserts that
Dr. Planavsky consistently and frequently found Plaintiff to be doing well,
exhibiting few if any symptoms, and even agreed to decrease Plaintiff’s
medication because it was effective. The Commissioner also argues that the
ALJ considered the medical expert’s opinion as only one factor in the RFC
determination, and that he also addressed all of the treatment records. Further,
the Commissioner contends the ALJ properly considered non-medical evidence
such as Plaintiff’s work history, daily activities, and alternative motivation for
seeking disability benefits.
In weighing the medical opinions, the ALJ discounted Dr. Planavsky’s
opinions (Exhibits 10F, 14F, and 16F) because they were inconsistent with his
office visit notes, which repeatedly noted that once Plaintiff was treated with the
39
proper dosage and timing of medication, he had no symptoms and handled all
aspects of his life well. (Tr. 16.) In addition to this, the ALJ found that Plaintiff
had a possible motivation for secondary gain to supplement his farm income.
(Tr. 15.) The ALJ cited evidence that Plaintiff had only $20,000–$30,000 gross
farm income, and that in May 2003, Plaintiff told Dr. Planavsky that he planned to
sell his farm, move to town, and find a job. (Id.)
Substantial evidence in the record supports both reasons the ALJ gave for
discounting Dr. Planavsky’s opinions. Most importantly, there is no support in
any of Dr. Planavsky’s treatment records for the years 1999 through 2007, four
years before and three years after the relevant time period, to support his opinion
that Plaintiff had very limited ability to function. (Tr. 550–58, 561.)
Dr. Planavsky’s records indicate that Plaintiff’s psychotic disorder was controlled
by medication, with very few, brief relapses of delusional thinking when he did
not take his medication on time. (Id.) Overall, during and near the relevant time
period in 2003, Dr. Planavsky felt that Plaintiff was doing well amidst great
financial and personal stress. (Id.) As previously noted, Dr. Planavsky even
agreed to decrease Plaintiff’s medication. (Tr. 555, 558.) Dr. Planavsky’s
opinions appear to be consistent only with Plaintiff’s functioning when he was
hospitalized in the 1990s, long before his medication compliance controlled his
symptoms.
There is also substantial evidence in the record supporting the ALJ’s
conclusion that Plaintiff had financial motivation, apart from inability to work, to
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seek disability income. See Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996)
(stating that an ALJ can consider an element of secondary gain in assessing
claimant’s credibility). In May 2003, just two months after Plaintiff’s date last
insured, Plaintiff told Dr. Planavsky that he was facing the loss of his farm, and
that he and his wife were talking about getting jobs after the farm sold. (Tr. 555.)
Plaintiff was looking for employment in 2003 because he was no longer making
money from his farm. (Tr. 558.) In June 2006, Plaintiff was still trying to ward off
foreclosure on his farm. (Tr. 310.) Plaintiff told Dr. Engdahl, who was evaluating
him for service-connected PTSD in 2007, that he was prompted to apply for VA
disability because he had been under considerable financial distress for years.
(Tr. 463–64.) Therefore, it was reasonable for the ALJ to conclude from the
evidence that Plaintiff may have quit working full-time on his farm because it was
no longer producing sufficient income, not because of his mental impairments.
Plaintiff also challenges the ALJ’s reliance on the medical expert’s opinion
because the medical expert never examined Plaintiff and did not review the
100% VA disability determination. An ALJ may consider an independent medical
expert’s opinion as one factor in determining the nature and severity of a
claimant’s impairments. Harris v. Barnhart, 356 F.3d 926, 931 (8th Cir. 2004). In
addition, an ALJ may disregard a treating physician’s opinion and give greater
weight to a medical assessment that is supported by better or more thorough
medical evidence. Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
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As discussed above, Dr. Planavsky’s opinion was not at all consistent with
his treatment notes during and near the relevant time period. Dr. Stevens, on the
other hand, opined that Plaintiff would have some work limitations by virtue of a
serious diagnosis like paranoid schizophrenia, even if his symptoms were under
control with medication. (Tr. 43, 46.) Therefore, she opined that Plaintiff would
be restricted to work involving reduced contact with others, and she restricted the
complexity and stress level of work Plaintiff could perform. (Tr. 46.) Dr. Stevens
disagreed with Dr. Planavsky’s RFC opinions because they were not consistent
with Plaintiff’s condition during the relevant time-frame, which was symptom-free
and medication compliant. (Tr. 47–48.) Evidence created and submitted after
the hearing on September 17, 2008, which Dr. Stevens did not review, did not
shed light on Plaintiff’s condition five or more years earlier but reflected posthearing deterioration. Therefore, substantial evidence in the record as a whole
supported the ALJ’s decision to give more weight to Dr. Steven’s RFC opinion.
Finally, Plaintiff’s daily activities during and near the relevant time period
are also inconsistent with Dr. Planavsky’s opinion that Plaintiff would miss more
than four days of work per month and could not complete a normal workday and
workweek without interruption from psychologically based symptoms. In addition
to the fact that Plaintiff had limited treatment and was mostly symptom-free,
Plaintiff sold part of his farm to avoid foreclosure (Tr. 555), worked out his
financial difficulties “in an orderly and thoughtful manner” (Tr. 556), and looked
42
for employment. (Tr. 558.) For all of these reasons, the ALJ’s RFC
determination is supported by substantial evidence in the record as a whole.
2.
Whether remand is necessary because the ALJ failed to
consider the 100% VA disability finding
Plaintiff incorrectly framed this issue – the ALJ did not improperly fail to
consider the July 8, 2009 VA disability decision, because it did not exist at the
time of the ALJ’s October 17, 2008 decision. None of the evidence in the
administrative record dated after October 17, 2008 was considered by the ALJ
but was submitted to the Appeals Council. Under such circumstances, the
question for the Court is whether the record as a whole, including the new
evidence, contains substantial evidence supporting the ALJ’s decision.
In the VA rating decision, the VA summarized the evidence it considered
and gave the reasoning for its decision in one sentence: “[A]n evaluation of 100
percent is warranted because you exhibit chronic symptoms that have in the
distant and recent past included a danger of hurting yourself or others. It
appears that this level of impairment is reasonably certain to continue, and we
find it is permanent in nature.” (Tr. 629.) Plaintiff did not exhibit the type of
delusional, paranoid, agitated, or anxious symptoms during the relevant time
period that were found in the distant past, when he was untreated by medication
and hospitalized in the 1990s. Nor did he, in 2003, exhibit any symptoms
suggesting poor impulse control or bad judgment, like that leading to his violation
of a protective order and stalking his ex-wife in 2008. The change in Plaintiff’s
43
condition in 2008 was linked to disputes over his divorce settlement; a very
recent change in medication from Prolixin to Invega, which allowed him to
experience emotions he had not experienced in a long time; and, according to
Dr. Dennis, early-memory impairment and other factors triggering a relapse of
PTSD symptoms. (Tr. 612–14, 619–23.) None of this later evidence changes
the fact that substantial evidence in the record as a whole supports the ALJ’s
conclusion that Plaintiff was not disabled from January through March 2003.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein,
IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion for Summary Judgment (Doc. No. 10), is DENIED;
2.
Defendant’s Motion for Summary Judgment (Doc. No. 14), is
GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: September 11, 2012
__s/ Jeffrey J. Keyes__________
JEFFREY J. KEYES
United States Magistrate Judge
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