Gast v. Colvin et al
Filing
30
MEMORANDUM OPINION AND ORDER: that: 1. Plaintiffs Motion for Summary Judgment (Doc. No. 18), is DENIED; 2. Defendants Motion for Summary Judgment (Doc. No. 25), is GRANTED; and 3. The case is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion) Signed by Magistrate Judge Jeffrey J. Keyes on 08/13/2014. (MMP)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Robert T. Gast, Jr.,
Civ. No. 13-1406 (JJK)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
Carolyn W. Colvin,
Acting Commissioner of Social Security,
Defendant.
Gregg B. Nelson, Esq., Social Security Disability Law Center, LLC; and Thomas
A. Krause, Esq., Schott Mauss & Associates PC, counsel for Plaintiff.
Ann M. Bildtsen, Esq., Assistant United States Attorney, counsel for Defendant.
JEFFREY J. KEYES, United States Magistrate Judge
Pursuant to 42 U.S.C. § 405(g), Plaintiff Robert T. Gast, Jr., 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. 18, 25.) 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 Fed. R. Civ. P. 73. (Doc. Nos. 10, 11.) For the reasons
stated below, this Court denies Plaintiff’s motion for summary judgment and
grants Defendant’s motion for summary judgment.
1
BACKGROUND
I.
Procedural History
Plaintiff filed an application for disability insurance benefits on June 22,
2010, alleging a disability onset date of March 1, 2008. (Tr. 119–20.) 1 Plaintiff’s
date last insured is March 31, 2012. 2 (Tr. 12.) The Social Security
Administration (“SSA”) denied Plaintiff’s claim initially and on reconsideration.
(Tr. 69–73, 79–81.) Plaintiff timely requested a hearing before an Administrative
Law Judge (“ALJ”), and the hearing was held on April 5, 2012. (Tr. 83–84, 34–
61.) On April 11, 2012, the ALJ issued an unfavorable decision on Plaintiff’s
application. (Tr. 9–33.) Plaintiff sought review of the ALJ’s decision, but the
Appeals Council denied the request for review on April 12, 2013. (Tr. 1–6.)
Denial by the Appeals Council made the ALJ’s decision the final decision of the
Commissioner. See 20 C.F.R. § 404.981.
II.
Background
Plaintiff, born on January 22, 1958, was fifty years old on his alleged onset
date of disability, March 1, 2008. (Tr. 119.) Plaintiff has a Master’s degree in
plant physiology, and he completed all but his thesis in a Ph.D. program and
1
Throughout this Report and Recommendation, reference to the
Administrative Record (Doc. No. 9), for this case is made by using the
abbreviation “Tr.”
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
worked as a researcher. (Tr. 337.) Plaintiff was unable to finish his thesis due to
his bipolar disorder, and he was hospitalized for a manic episode in 1989.
(Tr. 338.)
Plaintiff was diagnosed with Fabry disease 3 in 2000 and developed kidney
dysfunction. (Tr. 338.) In 2002, he committed a sexual offense by having a
relationship with a 15-year-old girl. (Tr. 339.) He has been in court-ordered
treatment since then. (Id.) Plaintiff more recently went to vocational school to
become a machinist and cabinet maker, working in those industries since 2001.
(Tr. 337.)
Plaintiff completed a function report for the SSA in 2008, describing his
daily activities. (Tr. 185–92.) He did mental exercises using computer
applications. (Tr. 189.) He studied for jobs and went to the workforce center to
look for part-time jobs. (Id.) He watched television and read. (Tr. 189.) If he
had trouble sleeping at night, he took a nap during the day. (Tr. 185.) He
shopped and had dinner with others in his apartment building. (Tr. 187–88.)
He could both drive and use public transportation. (Tr. 188.) He talked to his
3
Fabry Disease is caused by a lack of enzyme needed to metabolize lipids.
The disease may lead to impaired arterial circulation and kidney dysfunction.
Symptoms include burning sensations in the hands, noncancerous skin
blemishes, sweating, fever, and gastrointestinal symptoms. The disease is
treated with enzyme replacement therapy to reduce lipid storage, and medication
for pain and gastrointestinal symptoms. National Institute of Health and National
Institute of Neurological Disorders and Stroke, Fabry Disease Information Page,
http://www.ninds.nih.gov/disorders/fabrys/fabrys.htm (last visited August 11,
2014).
3
sister and friends on the phone. (Tr. 189–90.) At times, he had difficulty with
memory and concentration. (Tr. 190.) He followed instructions well and got
along with authority figures fairly well. (Tr. 190–91.)
Plaintiff’s neighbor, Steve Clasen, completed a third party function report
regarding Plaintiff on January 9, 2009, which stated the following. (Tr. 205–13.)
Plaintiff wore dirty clothes and did not bathe often enough. (Tr. 207.) Plaintiff
was able to do housework and yard work. (Tr. 208.) He had trouble
remembering to pay bills. (Tr. 209.) He was often late because he lost track of
time. (Tr. 210.) He left tasks unfinished. (Tr. 211.) And he did not handle stress
well, but he followed instructions pretty well. (Tr. 211–12.)
A.
Medical Records
Plaintiff suffers peripheral neuropathy caused by Fabry disease. (Tr. 358.)
The disease is treated with enzyme replacement therapy. 4 (Id.) Plaintiff is also
treated for mental impairments in the context of court-ordered sexual offender
treatment. (Tr. 357, 339, 444.) In early January 2007, Plaintiff saw his
psychologist, Dr. Beatrice Robinson. (Tr. 427.) At that time, Plaintiff’s
impairments were listed as obsessive-compulsive personality disorder; bipolar
disorder; and avoidant, schizotypal personality disorder. (Id.)
4
Fabrazyme is given by infusion at a slow rate, while carefully monitoring for
adverse reactions. Genzyme Corporation, Fabrazyme Preparation &
Administration, http://www.fabrazyme.com/hcp/treat/FZ_R_and_A_Fact_Sheet
.pdf (last visited July 16, 2014).
4
On January 18, 2007, Plaintiff reported concern with a recent loss of
memory, but he stated he did not think it was a major problem. (Tr. 351.) He
reported that he was very busy at work but did not feel unduly stressed or
anxious. (Id.) The record reflects that Plaintiff was taking Tegretol and Prozac,
and, particularly in the context of his partial renal failure, Plaintiff’s Tegretol levels
could become unusually high and contribute to cognitive and memory problems.
(Id.) Dr. Chester Whitley noted he would watch Plaintiff’s Tegretol levels, a
possible cause of cognitive and memory problems. (Id.) However, the doctor
noted that the symptoms at that time were minimal and limited enough not to
cause much concern. (Id.)
The following day Plaintiff saw Nurse Fran Rowan and Dr. Nancy
Richmond for medication management for bipolar II disorder. (Tr. 443–44.)
Plaintiff denied feeling depressed and said he was using light therapy to treat his
seasonal affective disorder. (Id.) He was sleeping eight hours at night but did
not feel rested. (Id.) Nurse Rowan noted that Plaintiff was not very cooperative
with treatment and he wore soiled clothes that day. (Id.) Plaintiff said his mood
was okay, but Nurse Rowan noted that his affect was mildly dysphoric. (Id.) She
stated that his thought processes were “somewhat logical and coherent,” but his
memory regarding a recent months-long period of cognitive decline was
incorrect. (Id.) She also noted that Plaintiff seemed to be very obsessive about
work, and his judgment and insight were fair to poor. (Id.)
5
On January 30, 2007, Dr. Robinson noted that Plaintiff seemed tired and
“somewhat confused, in the grip of his obsessive-compulsive disorder.”
(Tr. 426.) She believed Plaintiff’s excessive work hours related to his inability to
set boundaries and his need for companionship and socialization. (Id.) At that
time, Plaintiff agreed not to work more than forty hours per week. (Id.) In
February, Dr. Robinson noted that Plaintiff was continually late for treatment and
unable to set limits on his work, working thirty hours overtime without pay.
(Tr. 425.) Plaintiff again agreed to specific work hours, constituting forty-five
hours per week, which would allow him to arrive for treatment in a timely manner.
(Id.) Then, in March, Dr. Robinson confronted Plaintiff about not making
treatment a priority. (Tr. 423.)
On March 6, 2007, Nurse Rowan noted that Plaintiff appeared pale,
thinner, and somewhat disheveled, but that he said he was fine. (Tr. 441.) His
affect was constricted and dysthymic. (Id.) His psychomotor evaluation
indicated cognitive and memory difficulties and he did not always process
information logically and coherently. (Id.) Nurse Rowan noted that his workrelated behavior was obsessional, and his judgment and insight were fair to poor.
(Id.) In addition, Plaintiff was defensive about discontinuing his use of Neurontin
because it made him feel hung over during the day. (Id.) At that time, Nurse
Rowan explained to Plaintiff that he had to be careful with medication changes
due to his kidney disorder, and he needed to monitor his hypomanic symptoms.
(Tr. 441–42.)
6
On April 3, 2007, Plaintiff saw Dr. Robinson. He was depressed at that
time because he had been in a car accident and hit a pedestrian. (Tr. 421.)
Plaintiff reported that there might be financial consequences from the accident,
and he had spent the substantial sum of money he had received from his
parents’ estate in 1991. (Id.) Plaintiff indicated, however, that his sister agreed
to be his representative-payee to help him manage his finances. (Id.)
On April 12, 2007, Plaintiff had enzyme replacement therapy and
Dr. Whitley noted that Plaintiff had ongoing acroparesthesias 5 and
gastrointestinal problems. (Tr. 346.) Plaintiff’s adverse infusion reactions were,
at the time, well-controlled with medication. (Id.)
Two weeks later, Dr. Nancy Raymond reevaluated Plaintiff due to concern
that his obsessive compulsive personality disorder was interfering with his sex
offender treatment. (Tr. 438.) Plaintiff had difficulty completing things because
he was a perfectionist, he was a workaholic, and he hoarded things he would
never use. (Tr. 438–39.) Dr. Raymond noted that treatment would be difficult
because, with his Fabry disease, medication might cause cognitive impairment.
(Tr. 439.) Dr. Raymond discontinued Plaintiff’s Prozac because Plaintiff was
having trouble focusing, but she noted that Plaintiff’s mental status was normal,
with the exception of mildly flat affect. (Id.) Dr. Raymond assessed a GAF score
5
Acroparesthesias are abnormal sensations, such as burning or tingling, of
one or more of the extremities. Stedman’s Medical Dictionary 1316 (27th ed.
2000).
7
of 70 6 and diagnosed bipolar disorder and obsessive personality disorder.
(Tr. 439–40.)
On June 5, 2007, Plaintiff saw Nurse Rowan after he had a manic
episode, staying up all night working, after he switched from Prozac to Celexa.
(Tr. 435.) Nurse Rowan was concerned about Plaintiff’s weight loss and obvious
cognitive impairment at that time. (Tr. 435–36.) She noted that his concentration
had improved since starting Celexa, but his memory was still up and down. (Id.)
Plaintiff’s weight was down, and he said he was not eating well because he could
not afford food. (Tr. 435–36.) In addition, Plaintiff was poorly groomed, and his
speech was slow in rate and rhythm. (Tr. 436.) His psychomotor evaluation
indicated cognitive slippage, his thought processing was not logical or coherent,
and his insight and judgment were very poor. (Id.) Nurse Rowan recommended
neuropsychological testing. (Id.)
Two days later, Plaintiff saw Dr. Whitley for enzyme replacement therapy
and reported having difficulty with memory and day-to-day functioning.
6
The Global Assessment of Functioning Scale “GAF” was used by clinicians
under the Diagnostic and Statistical Manual of Mental Disorders, fourth edition
text revision, in effect since 2000 (“DSM-IV-tr”), to subjectively rate the social,
occupational, and psychological functioning of adults. DSM-IV-tr at 32. On a
scale of zero to one hundred, scores between 61 and 70 indicate some mild
symptoms, such as depressed mood and mild insomnia, or some difficulty in
social, occupational, or school functioning, but generally functioning pretty well.
Id. at 34. The GAF scale is no longer used under the DSM-V, in effect since
2013. Schacter, Gilbert, & Wegner, DSM-V Updates, Introducing Psychology,
http://worthpublishers.com/Catalog/samplechapters/316_UpdatesDSM5_Schacte
r_Intro2e.pdf (last visited August 11, 2014).
8
(Tr. 343–44.) Dr. Whitley noted that Plaintiff was very intelligent, but his
problems were significantly impairing his quality of life. (Tr. 343.) On
examination, Plaintiff seemed mildly depressed and was concerned over the
financial and legal ramifications of his car accident. (Tr. 344.) In addition,
Dr. Whitley noted Plaintiff’s body habitus was bordering on cachectic. 7 (Id.)
Plaintiff continued to work overtime and was late for treatment with
Dr. Robinson in June 2007. (Tr. 417–18.) During a visit, Dr. Robinson
questioned Plaintiff’s ability to keep working and meeting the requirements of his
sex offender treatment. (Id.) And on June 27, 2007, they discussed whether
Plaintiff should apply for disability and work only part-time. (Tr. 416.)
On July 2, 2007, Plaintiff underwent a neuropsychological examination with
Dr. Deborah Roman. (Tr. 337–42.) Plaintiff presented as dysphoric, with a very
flat affect. (Tr. 337.) Plaintiff reported that he felt his decline in memory and
attention had begun in February 2007, after he fell off a ladder, hit his head, and
briefly lost consciousness. (Tr. 338.) However, Plaintiff underwent a brain MRI,
and the results were normal. (Id.) Dr. Roman noted the following about
Plaintiff’s history. Plaintiff was diagnosed with Fabry disease in 2000, a disease
which caused kidney dysfunction and numbness in his left upper leg. (Id.)
Plaintiff’s attention to detail and perfectionistic approach prevented him from
7
Cachexia is general weight loss and wasting occurring in the course of a
chronic disease or emotional disturbance. Stedman’s Medical Dictionary 265
(27th ed. 2000).
9
finishing his Ph.D. thesis. (Id.) He had started treatment for bipolar disorder in
1989, and he was hospitalized once for a manic episode. (Id.) The more
depressed he was, the more trouble he had concentrating. (Tr. 339.) And
Plaintiff was on probation and court-ordered sex offender treatment since 2002.
(Id.)
During testing with Dr. Roman, Plaintiff was alert, attentive, and worked
carefully, and he did not have difficulty understanding or following instructions.
(Id.) The results showed that Plaintiff’s intelligence was in the above-average to
superior range, as measured using the Wechsler Adult Intelligence Scale-III
(Id.); his memory was somewhat inconsistent (Tr. 339–40); his executive abilities
were grossly intact (Tr. 340); and his testing overall revealed a few mild
abnormalities, raising the possibility of mild subcortical brain dysfunction. (Id.)
Dr. Roman noted that the abnormalities might have been caused by his recent
head injury, or by Fabry disease and/or treatment for Fabry disease, or that
depression alone might also have caused his cognitive impairments. (Tr. 341.)
Because his condition was mild, Dr. Roman recommended use of cognitive aids,
such as note-taking and continued mental health treatment. (Id.)
Plaintiff met with Dr. Robinson in July 2007, and Dr. Robinson noted that
Plaintiff was obsessed with working at the time; he established goals for Plaintiff
that allowed him to keep working full-time. (Tr. 415.) Dr. Robinson noted some
improvement on July 17, 2007. (Tr. 414.) Unfortunately, Plaintiff was laid off
from his job on or about July 31, 2007, which increased his depression.
10
(Tr. 413.) At the end of August, Dr. Robinson encouraged Plaintiff to apply for
disability and look for a part-time job. (Tr. 412.)
In September 2007, Plaintiff put his disability application on hold and
underwent vocational testing. (Tr. 411.) Plaintiff was considering the
advantages and disadvantages of several courses of action: applying for
disability; “trying to get retooled to work in a science lab” or applying for
unemployment; investigating, applying, or volunteering for lab jobs; considering
classes; and talking to contacts. (Tr. 410.) On September 28, 2007, Plaintiff saw
Drs. Rae Hoesing and Michael Miner for vocational planning. (Tr. 409.) Plaintiff
was, at the time, temporarily employed but discouraged about finding permanent
employment due to the barriers created by his sex offense. (Id.) Plaintiff agreed
to do more research about four career options identified in his vocational testing.
(Id.) And he agreed to inquire about university admission opportunities for
people with felonies. (Id.) In October 2007, Plaintiff focused on obtaining a work
license because his driver’s license was suspended. (Tr. 408.)
The following month, Plaintiff relapsed with self-injurious behavior,
including hitting himself when his sister was mad at him. (Tr. 405.) He admitted
hitting himself so hard that he left bruises on his legs. (Tr. 402.)
In December 2007, one of Plaintiff’s therapy assignments was to look for
jobs online. (Tr. 403.) On December 12, 2007, Plaintiff seemed more cognitively
intact than in the recent past, although he had not slept the previous night due to
numbness and tingling in his hands and feet. (Tr. 434.) At the time, Plaintiff was
11
actively searching for a job. (Id.) His mental status examination was normal,
with the exception of dysthymic affect and obsessional thought content. (Id.)
And his judgment and insight were fair to good. (Id.)
On January 8, 2008, Plaintiff reported that he got a temporary job.
(Tr. 401.) However, in February 2008, Plaintiff suffered increased depression
with suicidal ideation after having an argument with his parole officer. (Tr. 400.)
In March 2008, one of Plaintiff’s therapeutic goals was to apply for two sciencerelated jobs per week. (Tr. 397.) But on April 1, 2008, Dr. Robinson noted that
Plaintiff beat himself with a phone after having a fight with his sister. (Tr. 395–
96.)
Plaintiff saw Dr. Raymond on May 2, 2008, presenting with a stable mood
and mild depression. (Tr. 432.) He was sleeping well, and his energy and focus
were better. (Id.) He was looking for a job and hoping to get back into science.
(Id.) His mental status examination was normal, and Dr. Raymond opined that
Plaintiff was “quite stable.” (Id.) Later that month, Dr. Robinson noted that
Plaintiff was argumentative, but that he had improved since the last quarterly
review. (Tr. 394.)
Around the middle of May 2008, Plaintiff discontinued taking Celexa and
Tegretol, due to dizziness and nausea. (Tr. 431.) His mood was normal, and
there were no abnormal findings on his mental status examination. (Id.)
However, Dr. Raymond was concerned that, being off medication, Plaintiff would
develop a manic episode. (Id.) Therefore, she prescribed Lamictal. (Id.)
12
Several months later, Dr. Robinson confronted Plaintiff about his difficulty
with becoming distracted over minor details. (Tr. 389.) She noted that she
believed this had contributed to his “offending cycle.” (Id.)
In September 2008, Dr. Raymond noted that Plaintiff’s mood appeared
“quite stable,” and there were no abnormal findings in his mental status
examination. (Tr. 429.) At that time, Plaintiff reported that he was using Ambien
occasionally for sleep, but overall he was sleeping pretty well without medication.
(Id.)
In late November 2008, Plaintiff reported doing relatively well on the
medications Celexa, Lamictal, and Ambien, although he was generally requiring
Ambien to sleep at night. (Tr. 428.) At that time, his mental status examination
was normal. (Id.) But Plaintiff was somewhat defensive and argumentative in
therapy with Dr. Robinson a few days later. (Tr. 380.) And at their next session,
Plaintiff reported he found it difficult to concentrate on one thing at a time.
(Tr. 379.)
Dr. Raymond referred Plaintiff for inpatient psychiatric treatment on
July 25, 2009, for manic behavior. (Tr. 541.) The fact that Plaintiff had Fabry
disease made his medication management difficult, including a recent problem
with treating his migraine headaches. (Id.) At the time of admission, he was
working a number of part-time jobs, including apartment management and
maintenance, volunteer GED teacher, and machinist. (Tr. 546.) His speech was
pressured at times, his affect elevated, and he had trouble recalling events.
13
(Tr. 546.) Plaintiff believed it was a hypomanic, not manic, episode, based on
elevated mood and talkativeness. (Tr. 544.) He thought this might have been
precipitated by his neurologist starting him on nortriptyline for migraine
headaches. (Id.) Plaintiff’s medications were then adjusted, and his insomnia
and suicidal ideation improved, but he still felt some anxiety. (Tr. 549.) He was
noted to have poor boundaries with female peers during hospitalization. (Id.) He
was discharged on July 31, 2009. (Id.)
In October 2009, Dr. Robinson assisted Plaintiff with his paperwork for
unemployment assistance. (Tr. 632.) Plaintiff noted that he lost his job following
his hospitalization. (Id.) In November 2009, during a session with Dr. Robinson,
Plaintiff said he was extremely depressed for several weeks. (Tr. 631.) But his
mental status examination was normal at that time. (Tr. 646.) In December
2009, Plaintiff found two jobs in which he was interested (Tr. 628), and he
reported feeling much better. (Tr. 645.) His mental status examination was
again normal. (Id.)
In February 2010, Plaintiff was doing well, and handling his volunteer job
without issues. (Tr. 644.) Dr. Raymond noted his mental status examination was
normal, and his judgment and insight were good. (Id.) On April 9, 2010,
Plaintiff’s mood was stable and his thought content was negative for suicidal or
psychotic content, but it was positive for perseveration and obsession. (Tr. 640.)
His insight and judgment were fair. (Id.)
14
Dr. Robinson discussed financial planning with Plaintiff in June 2010.
(Tr. 620.) At that time, Dr. Robinson noted that she had consulted with a legal
aid attorney about social security disability. (Id.) She made the notations,
“Functional restrictions caused by his impairment” and “GAF - < 50.” (Id.)
On July 7, 2010, the records reflect that Plaintiff was hoping to get
disability benefits. (Tr. 617.) Dr. Robinson assisted him by reviewing his job
history and suggesting how he could draft his comments for his claim, noting he
had been let go from a number of jobs between 1989 and 1995. (Tr. 617–18.)
A few days later, Plaintiff told Dr. Raymond that he was depressed due to his
unemployment ending. (Tr. 638.) Dr. Raymond’s notes reflect that Plaintiff felt
his depression was situational, and his mental status examination was normal.
(Id.) Later that month, Plaintiff told Dr. Robinson that he had a possibility of a
full-time job in a “factory lab line.” (Tr. 615.) Dr. Robinson approved of his
applying for the job, under the condition that he would set boundaries to manage
his time. (Id.)
On July 16, 2010, Plaintiff saw Dr. Raluca Banica Wolters for management
of Fabry disease. (Tr. 750–51.) Dr. Wolters had requested an evaluation of
Plaintiff in February 2010, at which time Dr. Vishal Sagar, who completed the
evaluation, assessed that Plaintiff’s kidney disease was likely stage two. 8
8
Stage two kidney disease is mildly reduced kidney function. The Renal
Association, Stages 1 and 2 CKD, http://www.renal.org/information(Footnote Continued on Next Page)
15
(Tr. 576.) Plaintiff had been receiving lower doses of Fabrazyme for several
months due to a shortage of supply. (Tr. 750.) Since then, he was having more
pain in his hands and lower extremities, and numbness in his left thigh. (Id.) He
also believed he was not thinking clearly, and his speech was sometimes slurred.
(Id.) His psychiatrist had increased his dose of Celexa. (Id.) He looked
depressed, but his physical examination was normal, with the exception of a
patchy area of decreased sensation in the left thigh. (Id.) Unless his pain
worsened, no additional treatment was recommended. (Tr. 751.)
On August 30, 2010, Dr. Vishal Sagar noted that Plaintiff’s kidney disease
was stable in the last few years, and that Plaintiff felt okay overall, with
reasonable appetite and energy level. (Tr. 662.) At that time, Plaintiff’s kidney
disease was in stage three. 9 (Tr. 661.) Plaintiff saw Dr. Sagar in follow up for
stage three kidney disease in February 2011. (Tr. 754–56.) Plaintiff’s physical
examination was normal, and his kidney function was stable. (Id.)
Also in August 2010, an evaluation at the Program in Human Sexuality of
the University of Minnesota noted that Plaintiff’s psychological and environmental
problems included isolation, no intimate relationships, inability to complete his
(Footnote Continued from Previous Page)
resources/the-uk-eckd-guide/ckd-stages#sthash.Z7Ttvyce.dpbs (last visited
August 11, 2014).
9
Stage three kidney disease involves moderately reduced kidney function.
Id.
16
graduate degree, unemployment, debt, no source of income, and probation for a
sexual offense. (Tr. 713.) His GAF score at that time was 35. 10 (Id.) Plaintiff
continued to attend individual and group counseling and receive medication
management through November 2011. (Tr. 795–842, 886–934.)
B.
Providers’ Opinions
On August 16, 2010, Dr. Robinson wrote a letter supporting Plaintiff’s
disability application, which stated the following about Plaintiff. (Tr. 611–13.)
Plaintiff was unable to say no to people, and they took advantage of him
financially. (Tr. 612.) Plaintiff was unable to consistently maintain a job, having
been let go from four jobs between 2001 and 2006. (Tr. 611–12.) He worked
excessively and did not clean his house or pay his bills. (Id.) He was involved in
two forklift accidents. (Tr. 612.) Plaintiff was preoccupied with details, causing
him to lose the major point of an activity, and affecting his ability to complete
tasks in a timely manner. (Id.) He was rigid and stubborn. (Id.) He came across
to others as odd. (Id.) He corrected everyone, including supervisors, about the
smallest details. (Id.) His behavior was sometimes inappropriate, such as
writing a long letter to a female sales clerk. (Id.) At times, he wore dirty, tattered
clothes. (Id.) And he struggled with concentration and distractibility because his
10
GAF scores between 31 and 40 indicate some impairment in reality testing
or communication or major impairment in several areas such as work, school,
family relations, judgment, thinking, or mood. DSM-IV-tr at 32.
17
attention was easily drawn to unimportant external stimuli. (Tr. 613.)
Dr. Robinson wrote a similar letter about Plaintiff two months later. (Tr. 706–08.)
On March 8, 2011, Dr. Robinson completed a Psychological Medical
Report in support of Plaintiff’s disability application. (Tr. 739–41.) Again, she
noted that Plaintiff offended people by correcting minor points, and his
appearance was at times odd or poorly groomed. (Tr. 739.) She also noted that
Plaintiff was unable to manage money, and in most of his friendships he allowed
people to use him. (Id.)
On January 7, 2012, Dr. Robinson completed a Medical Source Statement.
(Tr. 935–40.) She noted that Plaintiff’s GAF score was 35, and he had made
some progress, improving his hygiene, personal care, and appropriateness with
females. (Tr. 935.) She also noted that when Plaintiff did not meet his own
perfectionistic standards, he engaged in self-injurious behaviors. (Tr. 936.)
Dr. Robinson opined that Plaintiff was unable to meet competitive standards in
the following areas: completing a normal workday and workweek without
interruptions from psychologically based symptoms; asking simple questions or
requesting assistance; accepting instructions and responding appropriately to
criticism from supervisors; dealing with normal work stress; awareness of normal
hazards; setting realistic goals or making plans independently of others;
interacting appropriately with the general public; maintaining socially appropriate
behavior; and dealing with stress of semi-skilled and skilled work. (Tr. 938–39.)
She opined that Plaintiff, while seriously limited, was not precluded from doing
18
the following: making simple work-related decisions; getting along with coworkers
or peers without unduly distracting them or exhibiting behavioral extremes;
responding appropriately to changes in a routine work setting; understanding and
remembering detailed instructions; and carrying out detailed instructions.
(Tr. 938.)
Dr. Nancy Raymond also completed a Medical Source Statement on
Plaintiff’s behalf, dated March 21, 2012, and she authored a letter regarding the
claimant. (Tr. 973–81; see Tr. 22.) She opined that Plaintiff had no useful ability
to do the following: remember work-like procedures; work in coordination with or
proximity to others without being unduly distracted; perform at a consistent pace
without an unreasonable number and length of rest periods; get along with
coworkers or peers without unduly distracting them or exhibiting behavioral
extremes; respond appropriately to changes in a routine work setting; deal with
normal work stress; understand and remember detailed instructions; set realistic
goals or make plans independently of others; interact with the general public; and
deal with stress of semiskilled and skilled work. (Tr. 975–77.) In addition,
Dr. Raymond opined that Plaintiff was unable to meet competitive standards in
the following activities: understand and remember very short and simple
instructions; maintain attention for two hours; make simple work-related
decisions; complete a normal workday and workweek without interruptions from
psychologically based symptoms; ask simple questions; accept instructions and
respond appropriately to criticism from supervisors; be aware of normal hazards;
19
carry out detailed instructions; maintain socially appropriate behavior; travel in
unfamiliar places; and use public transportation. (Id.) Finally, Dr. Raymond
noted that Plaintiff was seriously limited but not precluded from carrying out very
short simple instructions; maintaining regular attendance and being punctual
within customary, usually strict tolerances; and sustaining an ordinary routine
without special supervision. (Id.) She stated that Plaintiff would miss more than
four days work per month due to psychological symptoms. (Tr. 977.) And she
also noted that Plaintiff experienced medication side effects of drowsiness,
fatigue, dry mouth, and lethargy. (Tr. 980.)
Plaintiff’s probation officer, Beth Tietz, submitted a letter to the Social
Security Administration on March 22, 2012, in support of his disability application.
(Tr. 316.) She reported that she watched Plaintiff continue to struggle between
employment and managing his mental health since 2003, and that she believed
he was not able to do both. (Id.) When he became “overly focused” at work, she
stated that he let other aspects of his life get out of control, like not paying his
bills and letting his insurance lapse. (Id.) While she did not usually support her
clients receiving disability benefits, she stated that she believed it was
appropriate in Plaintiff’s case, due to his “many issues.” (Id.)
C.
Evidence Submitted to the Appeals Council
Plaintiff’s counsel took Dr. Robinson’s deposition on May 31, 2012, after
the ALJ issued his decision. (Tr. 982–93.) At that deposition, Dr. Robinson
testified as follows. She began working with Plaintiff in March 2003, and she had
20
access to Dr. Raymond’s treatment records, which indicated Plaintiff could not be
adequately medicated for psychiatric disorders because he had impaired kidney
functioning from Fabry disease. (Tr. 984.) In addition, his personality disorder
interfered with his treatment, although he made a good effort. (Id.) Dr. Robinson
testified that although she recommended that Plaintiff spend a month in jail for a
parole violation, she believed his violation was caused by his psychological
issues. (Tr. 984–85.)
As an example of Plaintiff’s over attention to detail, Dr. Robinson testified
that when given a simple assignment in therapy, he turned in thirteen written
pages with arrows and notations. (Tr. 986.) In response to work-related stress,
Plaintiff became more rigid. (Tr. 987.) And in his last job, he worked far more
hours than was required. (Id.) Although Plaintiff always said he was laid off from
his jobs, Dr. Robinson questioned whether that was true. (Id.) Dr. Robinson
testified that she believed Plaintiff was capable of holding part-time employment.
(Tr. 988.)
Dr. Robinson denied consulting with an attorney when completing a
questionnaire on Plaintiff’s work-related mental impairments and stated she had
never known Plaintiff to be capable of balancing work and daily living activities.
(Id.) She testified that Plaintiff’s bipolar disorder caused mood swings, but his
mania was controlled and depression was pervasive. (Tr. 990.) She also
discussed treatment records that mentioned Plaintiff’s dishonesty. (Tr. 991–92.)
An example of his dishonesty was not telling his group members he loaned a
21
substantial sum of money to someone. (Tr. 992.) She explained that he did not
understand that an omission of information was dishonest because his
impairments caused him to “miss[] the point of things.” (Id.)
D.
State Agency Consultants’ Opinions
On September 10, 2010, Dr. Dan Larson reviewed Plaintiff’s social security
disability file, at the request of the SSA, and opined that Plaintiff’s Fabry disease
and kidney disease, likely stage 2, were nonsevere impairments because they
were stable with treatment. (Tr. 696–98.) On reconsideration of Plaintiff’s
disability application on January 6, 2011, Dr. Patricia Bush reviewed Plaintiff’s file
and affirmed the conclusion that Plaintiff’s Fabry disease and chronic kidney
disease were nonsevere. (Tr. 730.) She noted that his creatinine 11 score was
1.5 in August 2010. (Id.) Otherwise, he had no significant findings upon
examination in his August 2010 evaluation. (Id.)
Upon request of the SSA, Dr. A. Lovko reviewed Plaintiff’s social security
disability file on September 7, 2010, and completed a Psychiatric Review
Technique Form and Mental Residual Functional Capacity (“RFC”) Assessment
form. (Tr. 676–95.) Dr. Lovko opined that Plaintiff could understand, remember,
and carry out unskilled to semi-skilled tasks. Further, Dr. Lovko found that
11
Creatinine is a chemical waste product produced by muscle metabolism
and, to a smaller extent, by eating meat. Healthy kidneys filter creatinine from
the blood. Thus, creatinine tests reveal information about kidney functioning.
Mayo Clinic, Tests and Procedures: Creatinine Test,
http://www.mayoclinic.org/tests-procedures/creatinine/basics/definition/prc20014534 (last visited August 11, 2014).
22
Plaintiff could relate on at least a superficial ongoing basis with coworkers and
supervisors, he could attend to tasks long enough to complete them, and he
could manage the stress involved with unskilled to semi-skilled work. (Tr. 694.)
Dr. Ray Conroe reviewed Plaintiff’s file on reconsideration of his disability
application on December 29, 2010, and affirmed Dr. Lovko’s opinion.
(Tr. 726–28.) Dr. Walter Rucker reviewed Plaintiff’s disability file at the request
of the SSA on January 12, 2011. (Tr. 735–37.) He affirmed Dr. Lovko’s
assessment, noting the treating psychologist’s letter described Plaintiff’s
behaviors at their worst, but treatment notes indicated his progress, and his
psychiatrist’s treatment notes described him more positively. (Tr. 737.)
III.
Testimony at the Administrative Hearing
Plaintiff’s Testimony
Plaintiff, represented by counsel, testified at a hearing before the ALJ on
April 5, 2012. (Tr. 34–61.) At the time of the hearing, Plaintiff was working
part-time as a building janitor, in exchange for a rent reduction. (Tr. 38.) At
most, he spent ten hours a week cleaning the building. (Tr. 39.) Plaintiff spent
his days sleeping late, cleaning the building as needed, preparing for group
therapy, attending therapy, and getting infusions to treat Fabry disease. (Tr. 39.)
The infusions required five hours, plus travel time. (Tr. 40.) He testified that he
felt drained or fatigued the rest of the day. (Tr. 51.)
Plaintiff had his driver’s license and continued to drive, although he had
been in an accident where he hit a pedestrian. (Tr. 58.) At the time of the
23
accident, he was coming home from work. (Id.) Plaintiff testified that he had
taken on too much responsibility at work and was tired all the time, but that now
he was only working ten hours per week. (Tr. 58–59.) In addition, he felt that if
he worked full-time again, he would have the same problems he had in the past.
(Id.)
Plaintiff also testified that he had lapses in his ability to concentrate related
to his depression or hypomanic states. (Tr. 52.) In a hypomanic state, he was
overly focused, almost out of control. (Id.) In a depressed state, his memory and
concentration worsened, causing him to have difficulty getting things done. (Id.)
Plaintiff stated that he took medications with side effects of dry mouth and
drowsiness, and he often felt tired during the day and would take naps. (Tr. 52–
53.) Plaintiff explained that he had always forced himself to go to work, even
when depressed or sick. (Tr. 54.)
Plaintiff also testified about his history. He obtained a Master’s degree and
was in a Ph.D. program, but a bipolar episode interfered with his education for a
year or two. (Tr. 48–49.) He believed his obsessive compulsive personality
disorder was a problem because he never felt his thesis was good enough to
present or publish. (Id.) He finally gave up working on his thesis around 1995,
and has not returned to school since then. (Id.)
In 1992, Plaintiff inherited $600,000, but he testified that he lost it by
making bad investments with dishonest people. (Tr. 41–42.) For example, in
2004, he lost over $100,000 in a real estate venture. (Tr. 42.)
24
Plaintiff stated that he had been seeing a counselor since 2002, when he
committed a sexual offense. (Tr. 46.) He continued to see a counselor and was
treated for bipolar disorder, obsessive compulsive personality disorder, and
schizotypal personality disorder. (Id.) He went to individual therapy once every
two weeks and group therapy once a week. (Tr. 47.) Plaintiff had also been
seeing a psychiatrist, Dr. Raymond, every four to six weeks for the last six or
seven years. (Id.)
Plaintiff testified that his last severe manic episode was in 1989, but he
continued to have hypomanic periods, including when he was hospitalized with a
hypomanic episode several years ago. (Tr. 47–48.) He stated that he was
depressed most of the time, but he was hypomanic a couple times per year. (Id.)
In addition, his obsessive compulsive personality disorder manifested by his
focusing on one thing, to the extent that he neglected other things. (Id.)
Plaintiff’s last full-time job, in 2008, was as a machinist at a cabinet shop.
(Tr. 44.) He stated that he was so occupied with the job that he did not take care
of himself, including when he had a couple of accidents at work. (Tr. 45–46.) He
also had difficulty in other jobs, in terms of personal interactions. (Id.) Plaintiff
testified that he would like to work, but that he does not believe he could work
without having the same problems he had in the past. (Tr. 42–43.) Plaintiff
testified that he had a pattern of being fired and becoming very depressed.
(Tr. 43.)
25
In addition, Plaintiff testified that in April 2012, he was depressed after
serving a month in jail for violating his parole. (Tr. 40.) He stated he was
depressed but not suicidal in jail, and that he was still seeing a probation officer
every two weeks. (Tr. 41, 50.)
Vocational Expert’s Testimony
William Rutenbeck testified at the hearing as a vocational expert.
(Tr. 54–57.) The ALJ asked him a hypothetical question as to whether an
individual could perform Plaintiff’s past work, assuming an individual of Plaintiff’
age, education, and work experience, who could—due to his limitations in
concentration, persistence, and pace—perform work limited to brief and
superficial interactions with the public, coworkers, and supervisors. (Tr. 55.)
Rutenbeck gave two examples of jobs such a person could perform – machinist
and router operator. (Id.)
Adding to the first hypothetical question, the ALJ said to assume the
individual was limited to three-to-four-step tasks that could be completed without
any interaction with the public. (Id.) Rutenbeck testified Plaintiff’s past relevant
work was excluded by those limitations. (Tr. 56.) He testified, however, that
there would be other work in the regional or national economy such a person
could perform, including janitor/cleaner 12 and vehicle cleaner. 13 (Id.)
12
Citing Dictionary of Occupational Titles (“DOT”) Code 381.687-018, with
41,000 such jobs in the State of Minnesota. (Id.)
(Footnote Continued on Next Page)
26
For a third hypothetical question, the ALJ said to assume the person would
be off task in excess of 20% of the day or absent in excess of two days per
month. (Id.) Rutenbeck testified that either limitation would preclude competitive
employment. (Tr. 56–57.)
In addition, in response to questioning by Plaintiff’s counsel, Rutenbeck
agreed the following limitations would render a person unemployable: no ability
to remember work-like procedures; limited ability to remember short and simple
instructions; and limited ability to carry out short and simple instructions, to the
point where the person would have trouble doing a simple job. (Tr. 57.)
Rutenbeck also stated that a person would more than likely be unemployable if
he was disruptive in the workplace due to a psychological condition. (Id.)
IV.
The ALJ’s Findings and Decision
On April 11, 2012, the ALJ issued a decision concluding that Plaintiff was
not disabled from his alleged onset date of March 1, 2008, through the date last
insured of March 31, 2012, therefore denying Plaintiff’s application for benefits.
(Tr. 12–26.) The ALJ followed the five-step evaluation set out in the Code of
Federal Regulations. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
Eighth Circuit Court of Appeals has summarized the five-step evaluation process
as follows: (1) whether the claimant is currently engaged in “substantial gainful
(Footnote Continued from Previous Page)
13
Citing DOT Code 919.687-014, with 6,900 such jobs in the State of
Minnesota. (Id.)
27
activity”; (2) whether the claimant suffers from a severe impairment that
“significantly limits the claimant’s physical or mental ability to perform basic work
activities”; (3) whether the claimant’s impairment “meets or equals a
presumptively disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience)”; (4) “whether
the claimant has the residual functional capacity [“RFC”] to perform his or her
past relevant work”; and (5) if the ALJ finds that the claimant is unable to perform
his or her past relevant work then the burden is on the Commissioner “to prove
that there are other jobs in the national economy that the claimant can perform.”
Fines v. Apfel, 149 F.3d 893, 894–95 (8th Cir. 1998) (citation omitted).
The ALJ found that Plaintiff had not engaged in substantial gainful activity
during the relevant period from his alleged onset date of March 1, 2008, through
his date last insured of March 31, 2012. (Tr. 14.) At step two, the ALJ found that
Plaintiff had the following severe impairments: “headaches, obsessive
compulsive personality disorder (OCPD) versus avoidant personality versus
schizotypal personality disorder, and bipolar disorder.” (Id. (citing 20 C.F.R.
§ 404.1520(c)).) The ALJ concluded that Plaintiff’s Fabry disease and resulting
chronic kidney disease were not severe impairments because Plaintiff was stable
on examination, with normal neurological functioning, gait, and strength. (Tr. 15
(citing Ex. 1F, 4F, 11F, 12F, 14F, 30F, 33F, 34F).)
At step three, the ALJ determined that Plaintiff’s physical and mental
impairments did not meet or medically equal one of the listed impairments in
28
20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15–17.) Specifically, the ALJ
stated that Plaintiff did not meet the “B criteria” of Listing 12.04 or 12.08 for
affective and personality disorders because he had only mild restrictions in
activities of daily living, evidenced by the fact that he lived independently, used a
computer for mental exercises, studied for jobs, looked for work, and took naps if
he had difficulty sleeping at night. (Tr. 15.) In addition, he used public
transportation, drove a car, shopped three times per week, paid bills and
managed a checkbook. (Id.) Although Plaintiff’s neighbor reported that Plaintiff
did not always wear clean clothes or comb his hair, and Plaintiff also paid bills
late due to forgetfulness and he borrowed money from his sister, the ALJ noted
that Plaintiff usually presented to his treatment providers with adequate hygiene
and grooming. (Tr. 15–16.) In social functioning, the ALJ determined that
Plaintiff had moderate difficulties because he talked to others on the phone, went
shopping, and went to medical appointments; he did not report difficulty getting
along with others; his providers did not indicate that he had trouble getting along
with staff or other clients in the treatment context; and he did not report any
social anxiety. (Tr. 16.) The ALJ determined that Plaintiff also had moderate
difficulties in concentration, persistence, or pace. (Id.) He based that decision
on the following: Plaintiff alleged difficulty with memory and concentration, but he
said he followed written and spoken instructions well; his neighbor indicated that
Plaintiff could pay attention but did not finish what he started; Plaintiff’s mental
status examinations, particularly in 2011, did not indicate any abnormalities;
29
Plaintiff did not display difficulties in understanding, asking questions, or
maintaining conversation in the treatment setting; and he appeared able to
comprehend and attend to the hearing. (Tr. 16–17.) Further, Plaintiff had no
episodes of decompensation of extended duration, and he did not establish the
“paragraph C” criteria of the listings. (Tr. 17.)
At step four of the evaluation, the ALJ found that Plaintiff had the RFC to
perform:
a full range of work at all exertional levels but with the following
nonexertional limitations: work is limited to 3-4 step tasks; no
interaction with the public is required to complete tasks; brief and
superficial interaction with supervisors/coworkers is required to
complete tasks.
(Tr. 17). In reaching this RFC determination, the ALJ noted that Plaintiff’s mental
status examinations during the relevant time period were “quite unremarkable.”
(Tr. 19). For example, in 2008, he was cooperative, responsive, and actively
engaged in managing his mental illness, although at times, he had some trouble
getting his ideas across. (Id.) In addition, in July 2009, Plaintiff was hospitalized
with symptoms of hypomania and his GAF score was between 31 and 40, but his
symptoms improved with treatment, his GAF score upon discharge was between
51 and 55, his memory appeared intact, and his insight was good. (Id.) Further,
in 2010 and 2011, Plaintiff’s mental status examinations were normal. (Tr. 19–
20.)
The ALJ also discounted Plaintiff’s credibility for a number of reasons,
including because the objective findings did not support the level of limitation he
30
alleged, his mental health records did not reflect great difficulty managing his
psychological symptoms, and the ALJ believed some records suggested Plaintiff
was seeking treatment solely to minimize legal consequences of his actions.
(Tr. 20.) 14 The ALJ found Plaintiff’s credibility to be in serious doubt because the
“weight of the evidence” indicated he is generally dishonest. (Id.) The ALJ cited
examples from Plaintiff’s treatment notes, including the following: (1) on July 5,
2011, Dr. Robinson confronted Plaintiff for failing to admit that he canceled a
doctor’s appointment in order to finish painting his apartment (Tr. 806); (2) on
December 20, 2011, Dr. Robinson noted that Plaintiff was still somewhat in
denial over his probation violation (Tr. 958); (3) in general, Plaintiff’s treatment
records indicated that failing to share information about his treatment progress in
group therapy was a lie by omission; (4) in October 2011, Plaintiff admitted
keeping a secret from his group that a new friend offered to give him a car
(Tr. 902), and this is the “friend” who got him to violate his parole by going to a
strip club (Tr. 906); and (5) Dr. Robinson noted that Plaintiff had a “pattern of
pervasive lies” about his interactions with this “friend.” (Tr. 886.) In addition, the
14
The ALJ cited Plaintiff’s 2003 diagnostic assessment by Dr. Brian
Zamboni. (Tr. 742–47.) Therein it was noted that Plaintiff was seeking treatment
at the Program in Human Sexuality after being caught in a sexual relationship
with a 15-year-old girl. (Tr. 742.) Dr. Zamboni opined that Plaintiff might be
seeking therapy to help resolve or minimize his legal difficulties. (Tr. 744.) He
also cited an October 25, 2011 treatment record in which Plaintiff admitted to his
sex offender support group that he had not been following his treatment program
or the group’s recommendations. (Tr. 902.)
31
ALJ pointed out that Plaintiff testified he lost all of his jobs due to his medical
condition, but the record showed he was laid off with the majority of his
coworkers. (Id.) 15
The ALJ found that Plaintiff’s daily activities were consistent with the type
of work described in his RFC finding. (Id.) The ALJ explained that Plaintiff could
care for himself, obtain medical treatment, socialize, use public transportation,
and drive without incident. (Id.) In addition, Plaintiff tutored GED classes,
indicating he could understand and recall simple instructions. (Id.) Plaintiff also
performed some work activity for neighbors and earned cash during the
applicable time period. 16 (Id.) He also worked part-time as a janitor without
difficulty. (Id.) Further, Plaintiff continued to apply for employment during the
relevant time period, and his psychologist helped him complete and revise cover
letters for jobs, suggesting that she believed he was capable of work. (Tr. 21.)
And the ALJ found that Plaintiff’s impairments were present at approximately the
same level of severity prior to his alleged onset date, particularly in 2007, but he
was able to maintain working at a level of substantial gainful activity during that
time. (Id.) Ultimately, the ALJ questioned Plaintiff’s motivation to work because
15
The ALJ cited Dr. Zamboni’s 2003 assessment, where Plaintiff told
Dr. Zamboni he was laid off his job as a machinist in 2003, along with the
majority of his coworkers. (Tr. 744.)
16
The ALJ cited an October 2009 treatment record, wherein Dr. Robinson
questioned whether Plaintiff received cash for work he had been doing for a
neighbor. (Tr. 632.)
32
his work history indicated sporadic employment. (Id.) 17 And the ALJ believed
Plaintiff’s criminal history and his recent jail time were the primary barriers to his
obtaining employment. (Id.)
Next, the ALJ explained what amount of weight he gave to the various
medical opinions and other opinions in the record. For example, Plaintiff’s
probation officer, Beth Tietz, submitted a letter to the SSA in March 2012, opining
that Plaintiff was unable to manage his life while he was employed, due to his
multiple mental impairments. (Id.) Tietz opined that he could not be employed
given his many issues. (Id.) The ALJ gave Tietz’s opinion little weight because
she is not a medical provider, she did not offer any specific work-related
limitations, and she was not qualified to do so. (Id.) Nonetheless, the ALJ
believed limiting Plaintiff to unskilled work accommodated the issues Tietz
described in her letter. (Id.)
The ALJ also considered Dr. Raymond’s Medical Source Statement, and
the letter she wrote regarding Plaintiff, both of which are described above.
(Tr. 22.) When Dr. Raymond assessed Plaintiff with a GAF score of 55, this
indicated that Plaintiff had moderate symptoms and difficulties in functioning.
(Id.) The ALJ found this inconsistent with Dr. Raymond’s opinion that Plaintiff
was unable to meet competitive standards in several areas of work-related
functioning. (Id.) Dr. Raymond also stated that Plaintiff’s mental status
17
Plaintiff’s work history report shows a gap in employment between 1995
and 2001. (Tr. 320.)
33
examinations generally indicated logical thought processes but
obsessional/perseverative thinking over life issues, stressors, personal
interactions, suspicion of others, discomfort in social situations, and suicidal
ideation at times. (Id.) She opined that Plaintiff’s mood would preclude him from
maintaining focus for long periods of time. (Id.) And she opined that his
personality disorder might preclude flexibility and adapting to changes. (Id.) In
determining Plaintiff’s mental RFC, the ALJ gave Dr. Raymond’s opinion little
weight because her records of Plaintiff’s mental status examinations did not
support her opinion. (Id.) Specifically, Dr. Raymond did not indicate
obsessional/perseverative thinking, suspicion of others, discomfort in social
situations, or suicidal ideation for Plaintiff during the relevant time period. (Id.)
The ALJ addressed Dr. Robinson’s opinions (described above) as well.
The ALJ gave Dr. Robinson’s opinions “very little weight” because her
conclusions did not match her general mental status examination findings
regarding Plaintiff. (Tr. 24.) The ALJ said that Dr. Robinson’s opinions about
Plaintiff’s inability to work were inconsistent with Dr. Robinson’s assistance to
Plaintiff in seeking employment. (Id.) The ALJ also found that Dr. Robinson’s
notation in a record that the “judge did what we asked” reflected her role as an
advocate, not simply a provider of medical services. (Id.) The ALJ said that it
appeared that Dr. Robinson uncritically accepted Plaintiff’s subjective complaints
as true when there was good reason to question Plaintiff’s reliability. (Id.)
34
The ALJ accepted that Plaintiff had unsuccessful work attempts in the
past, but he rejected the conclusion that this proved Plaintiff could not work now.
(Id.) He stated such a conclusion ignored inconsistencies in the claimant’s
allegations “and the entire body of evidence.” (Id.) The ALJ also noted that
Plaintiff’s past work was semi-skilled or skilled, and he restricted Plaintiff to
unskilled work. (Id.)
Ultimately, at step four of the disability determination procedure, the ALJ
found that Plaintiff was not capable of performing his past relevant work.
(Tr. 24.) But at step five, based on the vocational expert’s testimony, the ALJ
found that there were jobs that exist in significant numbers in the national
economy that Plaintiff could perform. (Tr. 25–26.) Thus, the ALJ concluded that
Plaintiff was not under a disability as defined by the Social Security Act, at any
time from March 1, 2008, through March 31, 2012. (Tr. 26.)
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
35
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).
Review by this Court of the Commissioner’s decision to deny disability
benefits to a claimant is limited to a determination of whether the decision of the
Commissioner is supported by substantial evidence on the record as a whole.
42 U.S.C. § 405(g); Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006). “There
is a notable difference between ‘substantial evidence’ and ‘substantial evidence
on the record as a whole.’” Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.
1987) (quotation omitted). Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted). “‘Substantial evidence on the record as a whole,’ . . .
requires a more scrutinizing analysis.” Gavin, 811 F.2d at 1199. “The
substantial evidence test employed in reviewing administrative findings is more
than a mere search of the record for evidence supporting the [Commissioner’s]
findings. Id. (quoting Parsons v. Heckler, 739 F.2d 1334, 1339 (8th Cir. 1984)).
In reviewing the record for substantial evidence, the Court may not
substitute its own opinion for that of the ALJ. Woolf v. Shalala, 3 F.3d 1210,
1213 (8th Cir. 1993). The Court may not reverse the Commissioner’s decision
merely because evidence may exist to support the opposite conclusion. Mitchell
36
v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf, 3 F.3d at 1213
(concluding that the ALJ’s determination must be affirmed, even if substantial
evidence would support the opposite finding). The possibility that the Court could
draw two inconsistent conclusions from the same record does not prevent a
particular finding from being supported by substantial evidence. Culbertson v.
Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citations omitted).
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 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).
II.
Analysis of the ALJ’s Decision
In support of his motion for summary judgment, Plaintiff makes two
arguments: (1) that the ALJ failed to properly evaluate the opinions of
Dr. Robinson and Dr. Raymond; and (2) that the ALJ failed to fully and fairly
develop the record concerning the work limitations caused by Plaintiff’s need for
Fabrazyme infusion treatments. (Doc. No. 19, Pl.’s Mem. in Supp. of Mot. for
Summ. J. (“Pl.’s Mem.”) 16–32.)
37
A. Treating Providers’ Opinions
An ALJ determines RFC by considering all evidence in the record,
weighing physician and other providers’ opinions, and assessing credibility.
Pearsall v. Massanari, 274 F.3d 1211, 1217–18 (8th Cir. 2001). Treating
physicians’ opinions are entitled to controlling weight if “well-supported by
medically acceptable clinical and laboratory and diagnostic techniques” and not
inconsistent with other substantial evidence in the record. Pirtle v. Astrue, 479
F.2d 931, 933 (8th Cir. 2007) (quoting Prosch v Apfel, 201 F.3d 1010, 1012–13
(8th Cir. 2000)). An ALJ may give less weight to a physician’s opinion if the
opinion is based largely on the claimant’s subjective complaints rather than on
objective medical evidence. Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007).
A claimant’s subjective complaints cannot be discounted solely on the
basis of lack of objective findings to support the severity of his complaints.
Polaski v. Heckler, 739 F.3d 1320, 1322 (8th Cir. 1984). An ALJ must consider,
but need not discuss, each of the following factors in making a credibility
assessment: (1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage,
effectiveness, and side effects of medication; (5) any functional restrictions;
(6) the claimant’s work history; and (7) the absence of objective medical
evidence to support the claimant’s complaints. Moore v. Astrue, 572 F.3d 520,
524 (8th Cir. 2009). When an ALJ provides good reasons for his credibility
38
finding, courts should defer to that finding, because the ALJ is responsible for
deciding questions of fact. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
Plaintiff asserts that Drs. Robinson and Raymond knew Plaintiff well and
were in the best position to evaluate his impairments. (Pl.’s Mem. 16–17.) Even
if their opinions are not entitled to controlling weight, Plaintiff contends they
should be afforded the greatest weight. (Id. at 18.) Plaintiff further asserts that
the Court should consider Dr. Robinson’s sworn statement, taken after the ALJ’s
decision, because it was submitted to the Appeals Council. The Court will review
the statement to determine if the record as a whole, including Dr. Robinson’s
sworn statement, supports the ALJ’s determination. See Perks v. Astrue, 687
F.3d 1086, 1093 (8th Cir. 2012) (describing standard of review of new evidence
that was considered by Appeals Council before declining review). Based partly
on the new evidence, Plaintiff contends that none of the reasons the ALJ gave for
discounting Dr. Robinson’s opinions were valid. (Pl.’s Mem. 20–21.) However,
the Court concludes that the ALJ’s decision to afford little weight to the opinions
of Drs. Robinson and Raymond is properly supported by the record in this case.
Although Dr. Robinson had a longstanding treating relationship with
Plaintiff, the ALJ concluded that Dr. Robinson’s mental status examination
findings did not establish the level of limitation that Dr. Robinson found in her
assessment of Plaintiff’s work-related abilities. For example, Dr. Robinson
concluded that Plaintiff’s mental status was normal in examinations conducted in
October and December 2009, and again in February, April, and July 2010. The
39
ALJ noted that Dr. Robinson apparently relied quite heavily on Plaintiff’s
subjective report of symptoms and limitations but, as described above, the ALJ
concluded, based on evidence in the record, that Plaintiff’s subjective complaints
were not reliable.
Another reason why the ALJ gave little weight to Dr. Robinson’s
assessment of Plaintiff’s work-related ability was the fact that she continued to
assist Plaintiff in seeking employment. Although Dr. Robinson testified that she
believed Plaintiff could perform part-time work, the treatment records suggest
that she did not limit Plaintiff to part-time work, even though she had considered
doing so because Plaintiff was working too many hours and not fulfilling his sex
offender treatment requirements. (Tr. 334, 423, 426.) Plaintiff was laid off his job
in July 2007, and subsequently, Dr. Robinson helped Plaintiff get vocational
assistance. (Tr. 409–10.) Plaintiff was concerned about employment barriers
related to his offense. (Tr. 409.) Nevertheless, four career paths were identified
for him, and Dr. Robinson encouraged Plaintiff to follow up and apply for jobs.
(Tr. 408, 391.) His volunteer job was going well in February 2010. (Tr. 644.)
And Plaintiff sought and received permission from Dr. Robinson to apply for a
full-time job in July 2010. (Tr. 615.) Substantial evidence in the record supports
the ALJ’s conclusion that Plaintiff’s unemployment could be explained by the
difficulty of finding a job due to his criminal history, rather than his mental
impairments. As noted by a state agency psychological consultant who reviewed
Plaintiff’s medical records for the SSA, Dr. Robinson’s opinions of Plaintiff’s
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functioning represented his impairments at their worst. (Tr. 737.) The relevant
time period for Plaintiff’s disability evaluation is after he was laid off, when his
functioning had improved, and he was actively seeking employment.
Next, Plaintiff contends the ALJ failed to give good reasons for rejecting
Dr. Raymond’s opinion. (Pl.’s Mem. 24.) Plaintiff asserts Dr. Raymond relied on
objective evidence in support of her opinions of Plaintiff’s functioning.
(Id. at 25.) The ALJ discounted Dr. Raymond’s opinion because her treatment
records indicated that Plaintiff’s mental status examinations were normal.
(Tr. 22.) Indeed, Dr. Raymond’s treatment records suggest Plaintiff was, during
most of the relevant time period, quite stable and not exhibiting impaired mental
functioning in mental status examinations. (See, e.g., Tr. 428–44; 638–56;
840–42; 931–34; 971–72.) There were very few instances where Dr. Raymond
noted that Plaintiff’s thought content was perseverative or suicidal, the clinical
findings she used to support her opinion. (See, e.g., Tr. 640.) Plaintiff recovered
quickly from a hypomanic episode, which might have been caused by a
medication change, and he was hospitalized for one week in July 2009.
(Tr. 541–50.) In all, the ALJ correctly determined that Dr. Raymond’s treatment
records were inconsistent with her opinion. See Hacker v. Barnhart, 459 F.3d
934, 938 (8th Cir. 2006) (holding the ALJ properly discounted treating physician’s
opinion where it was inconsistent with other substantial evidence in the record).
Moreover, the ALJ offered a good reason for finding Plaintiff capable of a
limited range of unskilled work. (Tr. 24.) Drs. Robinson and Raymond discussed
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in detail how Plaintiff’s mental impairments related to perfectionism and
obsessive focus on details, causing him to take too long to complete a task or to
miss the point of a task. The ALJ noted that Plaintiff’s past work was semi-skilled
and skilled, but the ALJ limited Plaintiff to unskilled work. (Id.) In unskilled work,
Plaintiff would not be required to perform detailed work that might cause him to
lose his focus. In fact, the ALJ’s opinion was consistent with Dr. Raymond’s
opinion that Plaintiff was not precluded from carrying out very short simple
instructions; maintaining regular attendance; being punctual within customary,
usually strict tolerances; and sustaining an ordinary routine without special
supervision. (Tr. 975–77.)
The ALJ also accommodated Plaintiff’s social difficulties, described by
Dr. Robinson as correcting supervisors over minor mistakes, odd appearance,
and difficulty interacting with females, by limiting Plaintiff to work requiring only
brief and superficial contact with coworkers and supervisors, and no interaction
with the public required to complete tasks. (Id.) On January 7, 2012,
Dr. Robinson stated that Plaintiff had improved his personal appearance and
appropriate behavior with females. (Tr. 935.) Plaintiff’s part-time work and job
seeking are also inconsistent with disability. See Dunahoo v. Apfel, 241 F.3d
1033, 1038–39 (8th Cir. 2001) (explaining that seeking work and working
part-time were inconsistent with disability).
Finally, the ALJ found that Plaintiff’s impairments were of about the same
severity in 2007, and Plaintiff maintained full-time employment despite his
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impairments in 2007. As described above, Plaintiff’s sex offender treatment
required him to attend frequent treatment and make progress toward his goals,
and Dr. Robinson was concerned that Plaintiff was allowing his obsession with
work and working excessive unpaid hours to interfere with treatment.
Nonetheless, she supported Plaintiff’s continued work. Furthermore, Plaintiff was
not fired from this job, he was laid off. Plaintiff continued to work part-time and to
look for full-time work. Although the record could support more than one
conclusion, it supports the ALJ’s conclusion that Plaintiff’s layoff, subsequent
search for employment, and criminal history could better explain his continued
unemployment. This, together with Plaintiff’s mostly normal mental status
examinations during the relevant time period, is substantial evidence in the
record as a whole supporting the ALJ’s decision to discount Drs. Robinson’s and
Raymond’s opinions.
B. Duty to Develop the Record
Plaintiff also contends that the ALJ failed to fully and fairly develop the
record concerning his work-related limitations from Fabry disease. (Pl.’s Mem.
25–32.) Specifically, Plaintiff points out that a state agency medical consultant
opined that Plaintiff’s Fabry disease did not result in any limitations, but asserts
that the consultant was mistaken that Plaintiff had stage two kidney disease,
when it was actually stage three. (Id. at 30 (citing Tr. 697, 754, 756).) Therefore,
Plaintiff contends the record is unclear as to work-related limitations from stage
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three kidney disease, and the ALJ should have further developed the record
regarding Plaintiff’s Fabry disease. (Id. at 30–32.)
The Commissioner points out that the ALJ cited to the exhibits that
contained Plaintiff’s stage three kidney disease diagnosis; therefore, the
Commissioner asserts there is no reason to believe the ALJ was unaware of the
diagnosis when he determined Plaintiff’s kidney disease was not a severe
impairment. (Doc. No. 26, Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s
Mem.”) 21–22.) Noting that Plaintiff’s kidney disease progressed to stage three
on or about August 2010, the Commissioner asserts his kidney condition was
repeatedly described as stable thereafter, and there were no abnormal findings
on examination through December 2011. (Id. at 22–23.) The Commissioner also
contends that Plaintiff’s attorney stated the record was complete at the
administrative hearing, and should not now be allowed to demand remand for
failure to develop the record, particularly where Plaintiff has not attempted to
demonstrate how further development of the record might establish disability.
(Def’s Mem. 18–21.)
An ALJ has a duty to fully and fairly develop the record, even when the
claimant is represented by an attorney. Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). Here, the ALJ found Plaintiff’s Fabry disease and kidney disease
were nonsevere impairments. (Tr. 14–15.) The ALJ cited to exhibits containing
the diagnosis of stage three kidney disease. (Id. (citing Ex. 30F, 33F, 34F).)
Further, on reconsideration of Plaintiff’s disability claim on January 6, 2011,
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Dr. Patricia Bush, a state agency medical consultant, reviewed Plaintiff’s
treatment records. (Tr. 730.) She specifically noted Plaintiff’s August 2010
evaluation of Fabry and kidney disease. (Id.) Plaintiff was diagnosed with stage
three kidney disease on August 30, 2010. (Tr. 661.) Nonetheless, Dr. Bush
opined Plaintiff’s physical impairments were nonsevere. (Tr. 730.)
There is nothing in the record suggesting that Plaintiff’s physical
impairments worsened in any significant or lasting manner after this
determination by Dr. Bush. Furthermore, Plaintiff has not suggested how going
from stage two to stage three kidney disease has caused him any functional
limitations, and the record does not reflect any work-related limitations. For
these reasons, the Court finds no reason that the ALJ should have further
developed the case on this issue. See Stormo v. Barnhart, 377 F.3d 801, 806
(8th Cir. 2004) (holding that an ALJ is not required to seek clarifying statements
from a treating physician unless a crucial issue is undeveloped).
Finally, Plaintiff contends he would miss work two days per month for
enzyme infusion treatment, which was performed every other week and lasted
five hours, leaving Plaintiff feeling tired the rest of the day. (Pl.’s Mem. 31–32.)
However, Plaintiff is incorrect that the vocational expert testified that two days of
absence from work per month would preclude competitive employment. (Pl.’s
Mem. 32.) The vocational expert testified that absences in excess of two days
per month would preclude competitive employment. (Tr. 56–57.) In addition, as
the Commissioner has pointed out, there is nothing in the record indicating that
45
Plaintiff could not make appointments around his work schedule. (Def.’s Mem.
24.) Moreover, Plaintiff worked forty-five hours per week while receiving this
treatment in the past. (Id. (citing Tr. 334).)
In response, Plaintiff asserts that in addition to infusion treatments, he has
at least two hours of therapy every week. (Doc. No. 28, Pl.’s Reply Br. 6.)
Plaintiff contends that the ALJ should have included his need for treatment in the
hypothetical question to the ALJ. (Id. at 6–7.) But it is undisputed that Plaintiff
worked full-time in the past while receiving treatment, and his work was semiskilled or skilled. (Id. at 6–7.) And the ALJ did not find Plaintiff was capable of
his past work, but that he was capable of unskilled work. (Id.) Even so, Plaintiff
points out that the burden of proof shifted to the Commissioner at step five of the
evaluation, and the ALJ cannot assume the unskilled jobs available to Plaintiff
would accommodate his treatment schedule. (Id.) Therefore, Plaintiff argues
remand for vocational expert testimony is required. (Id.)
Plaintiff cites Eback v. Chater, 94 F.3d 410 (8th Cir. 1996). In Eback, it
was uncontested that the claimant needed to use a nebulizer daily, once
between 7:00 and 8:00 a.m., and again between 2:00 and 3:00 p.m.
Id. at 411–12. The vocational expert testified he assumed the employer would
make an accommodation. Id. at 412. The court held this was an improper
assumption, particularly because many of the jobs cited by the ALJ that the
claimant could perform were “shift jobs,” which might not allow breaks necessary
for Eback’s use of a nebulizer. Id. And the vocational expert did not testify that
46
the jobs he cited would allow breaks during an eight-hour day, as would be
required by Eback’s condition. Id.
The Commissioner cites Brown v. Astrue, No. 08-cv-4026-C-NKL-SSA,
2008 WL 4151613 (W.D. Mo. Sept. 2, 2008). (Def.’s Mem. 24.) In Brown, the
district court found no evidence that the claimant’s treatment required a full day’s
absence or that she would need to miss work to receive treatment. Id. at *2.
Furthermore, the ALJ had considered possible absences when he determined
Brown’s RFC. Id.
Here, the record clearly establishes that Plaintiff required about three
hours, sometimes more, for enzyme infusion treatment, once every other week.
Plaintiff usually received this treatment beginning anywhere between two and
four in the afternoon. On occasions, he received the treatment around nine in
the morning. The record, however, does not support Plaintiff’s contention that
the treatment made him unemployable, as he had the injections without difficulty
for years. (See, e.g., Tr. 767, 779, 865–66.) And the record does not support
the conclusion that Plaintiff’s infusion treatment would require him to miss two full
days or more of work every month. In fact, the record reflects that Plaintiff’s past
work only interfered with his sex offender treatment when he allowed himself to
work excessive overtime hours, which was unnecessary. In all, the record does
not support Plaintiff’s contention that his treatment precludes competitive
employment. For these reasons, this case is distinguishable from Eback, and
remand for additional vocational testimony is unnecessary.
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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. 18), is DENIED;
2.
Defendant’s Motion for Summary Judgment (Doc. No. 25), is
GRANTED; and
3.
The case is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: August 13, 2014
_s/ Jeffrey J. Keyes______________
JEFFREY J. KEYES
United States Magistrate Judge
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