Hafford v. Astrue

Filing 17

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Doc. 1, 10.]IT IS FURTHER ORDERED that the Court will enter a judgment in favor of theCommissioner affirming the decision of the administrative law judge.IT IS FURTHER ORDERED that the Clerk of Court shall substitute Carolyn W.Colvin, Acting Commissioner of Social Security for Michael Astrue.. Signed by Magistrate Judge Nannette A. Baker on 3/26/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

STEVEN PAUL HAFFORD,
Plaintiff,
v.
CAROLYN W. COLVIN1,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 1:12-CV-122-NAB

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Steven Paul Hafford (“Hafford”) application for
disability insurance benefits and Supplemental Security Income (“SSI”) under Title II and Title
XVI of the Social Security Act. 42 U.S.C. § 401 et seq. and 42 U.S.C. § 1381 et seq. Hafford
alleges disability due to heart disease, triple bypass surgery, and advanced chronic obstructive
pulmonary disease (“COPD.”) (Tr. 362.) The parties consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 6.] For the
reasons set forth below, the Commissioner’s decision is affirmed.
I.

Background
On October 28, 2008, Hafford filed applications for a period of disability, disability

insurance benefits, and SSI benefits.
1

(Tr. 260-269.)

The Social Security Administration

At the time this case was filed, Michael J. Astrue was the Commissioner of Social Security. Carolyn W. Colvin
became the Acting Commissioner of Social Security on February 14, 2013. When a public officer ceases to hold
office while an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P.
25(d). Later proceedings should be in the substituted party’s name and the Court may order substitution at any time.
Id. The Court will order the Clerk of Court to substitute Carolyn W. Colvin for Michael J. Astrue in this matter.

(“SSA”) denied Hafford’s claims and he filed a timely request for a hearing before an
administrative law judge (“ALJ”). (Tr. 113-115, 153.) The SSA granted Hafford’s request and
the hearing took place on November 15, 2010. (Tr. 29-81, 161-167.) Hafford, medical expert
Dr. Lars Alex, and vocational expert Matt Lamply testified at the hearing.

A second

supplemental hearing took place on April 5, 2011, at the request of Hafford to examine
consultative medical examiner Dr. Naveed J. Mizra. (Tr. 82-89, 214.) Dr. Walker Lewin, a
medical expert testified in Dr. Mizra’s stead. (Tr. 82-89.) The ALJ issued a written decision on
April 14, 2011, affirming the denial of benefits. (Tr. 118-139.) The ALJ then issued an
amended decision on July 8, 2011, again affirming denial of benefits. (Tr. 8-22.) Hafford
requested review of the ALJ’s decision from the Appeals Council. (Tr. 257-259.) On May 21,
2012, the Appeals Council denied Hafford’s request for review. (Tr. 1-4.) The decision of the
ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107
(2000). Hafford filed this appeal on July 19, 2012. [Doc. 1.] The Commissioner filed an
Answer on September 25, 2012. [Doc. 8.] Hafford filed a Brief in Support of his Complaint on
October 26, 2012. [Doc. 10.] The Commissioner filed a Brief in Support of the Answer on
January 25, 2013. [Doc. 15.] Hafford filed a Reply Brief on February 13, 2013.
The Court has reviewed the parties’ briefs, the ALJ decision, the record including the
hearing transcript and medical documentary evidence. The complete set of facts and arguments
are presented in the parties’ briefs and are repeated here only to the extent necessary.
II.

Standard of Review
The Social Security Act defines disability as an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which

2

can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A), 42 U.S.C. § 423(d)(1)(A).
The Social Security Administration uses a five-step analysis to determine whether a
claimant seeking disability benefits is in fact disabled.

20 C.F.R. §§ 404.1520(a)(1),

416.920(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the claimant must establish that he or she has an
impairment or combination of impairments that significantly limits his or her ability to perform
basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Third, the claimant
must establish that his or her impairment meets or equals an impairment listed in the appendix to
the applicable regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(iii).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the burden
shifts to the Commissioner to establish that the claimant maintains the residual functional
capacity to perform a significant number of jobs in the national economy. Singh v. Apfel, 222
F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all of the criteria under the five-step
evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v).
This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). Therefore, even if this
Court finds that there is a preponderance of evidence against the weight of the ALJ’s decision,
the decision must be affirmed if it is supported by substantial evidence. Clark v. Heckler, 733

3

F.2d 65, 68 (8th Cir. 1984). An administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion. Gwathney v. Chater, 1043, 1045 (8th Cir.
1997).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
claimant;
(3) The medical evidence given by the claimant’s treating
physician;
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s
physical impairment;
(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

ALJ’s Amended Decision
Utilizing the five step analysis, the ALJ determined in the first step that Hafford met the

insured status requirements of the Social Security Act through December 31, 2010 and has not
engaged in substantial gainful activity since October 31, 2005, the alleged onset date. (Tr. 12.)
At step two, the ALJ found that Hafford had the severe impairments of mild degenerative
changes of the thoracic spine, status-post three-vessel coronary artery disease, hypertension,
hyperlipidemia, COPD, major depressive disorder, and anti-social personality disorder. (Tr. 12.)

4

At step three, the ALJ determined that Hafford did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments of 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 12.) At step four, the ALJ found that Hafford had the residual
functional capacity to perform sedentary work, with the following limitations: (1) no climbing
ropes, ladders, or scaffolds; (2) no more than occasional balancing, stooping, kneeling,
crouching, or crawling; (3) no exposure to unprotected heights or dangerous moving machinery;
(4) no concentrated or excessive exposure to dust, fumes, chemicals, temperature extremes, high
humidity, dampness, or other typical allergens, pollutants, or other atmospheric irritants; (5) only
simple, routine tasks; and (6) no more than occasional interaction with co-workers, supervisors,
or the general public. (Tr. 14.) The ALJ also found that Hafford could not return to his past
relevant work. (Tr. 20.) At step five, the ALJ determined that there are jobs that exist in
significant numbers in the national economy that he can perform. (Tr. 20.)
IV.

Discussion
Hafford presents three errors for review. First, Hafford contends that the ALJ abused his

discretion and erred in denying him the right to cross-examine Dr. Naveed J. Mizra and then
relying on Dr. Mizra’s opinion to deny his claim. Second, Hafford asserts that the opinions of
his treating physicians were entitled to substantial weight. Third, Hafford asserts that the ALJ
erroneously discounted Hafford’s credibility. The Commissioner asserts that the ALJ’s decision
is supported by substantial evidence in the record as a whole.
A.

Opinion of Dr. Mizra

Hafford asserts that he was prejudiced when he was denied the opportunity to crossexamine Dr. Mizra and this, coupled with the reliance upon Dr. Mizra’s report constituted a
violation of his due process rights. At the first administrative hearing, Hafford requested a

5

consultative examination regarding his mental issues. (Tr. 32.) The ALJ granted Hafford’s
request and sent Hafford for a consultative examination with Dr. Mizra. (Tr. 79, 1073-1083.)
Dr. Mizra prepared a report and diagnosed Hafford with major depression, antisocial personality
disorder, and polysubstance abuse. (Tr. 1073, 1080-1081.) Dr. Mizra opined that Hafford had
no functional restrictions related to his impairments and no limitations psychiatrically. (Tr.
1074-1075.)
After receipt of Dr. Mizra’s report, Hafford requested a supplemental hearing so that Dr.
Mizra could be cross-examined. (Tr. 214.) The ALJ scheduled a supplemental hearing, but Dr.
Mizra did not testify, because he was unavailable. (Tr. 85.) The ALJ requested Dr. Lewin to
“substitute” for Dr. Mizra at the hearing.2 (Tr. 85.) Hafford’s counsel objected to the inclusion
of Dr. Mizra’s report in the exhibits, because Dr. Mizra was not available to testify. (Tr. 85.)
The ALJ overruled the objection and allowed Hafford’s counsel to cross-examine Dr. Lewin.
(Tr. 85.) Dr. Lewin testified that he believed that Hafford met Listing 12.04 for affective
disorders. 20 C.F.R. Pt. 404, Subpt. P, App’x 1. (Tr. 86-88.)
In his decision, the ALJ determined that Hafford did not meet or equal a listing based on
a mental impairment. (Tr. 13.) The ALJ stated that Dr. Lewin’s opinion that Hafford met a
listing was inconsistent with Hafford’s treatment history as reflected in his treating sources’
notes. (Tr. 13.) The ALJ also gave more weight to Dr. Mizra’s opinion, because he examined
Hafford and considered his complete medical history, and found no reason to impose any mental
restrictions. (Tr. 13.) The ALJ noted that Dr. Lewin’s opinion was based only on a review of
medical records. (Tr. 13.)

2

According to a letter to the ALJ after the ALJ’s initial decision, Hafford and his counsel were unaware before the
April 5, 2011 supplemental hearing that Dr. Lewin would be testifying instead of Dr. Mizra. (Tr. 252.)
6

“The Due Process Clause of the Fifth Amendment requires that before property can be
taken, notice and opportunity for a hearing be provided.” Wilburn v. Astrue, 626 F.3d 999, 1002
(8th Cir. 2010) (citing Baldwin v. Credit Based Asset Servicing and Securitization, 516 F.3d 734,
737 (8th Cir. 2008). The Court assumes that the due process clause applies to the denial of
Hafford’s benefits.3 Procedural due process under the Fifth Amendment requires that disability
claimants be provided a full and fair hearing. Hurd v. Astrue, 621 F.3d 734, 739 (8th Cir. 2010).
“Social security disability hearings are non-adversarial proceedings and therefore do not require
full courtroom procedures.” Hepp, 511 F.3d at 804. In Perales, the U.S. Supreme Court held
[A] written report by a licensed physician who has examined
the claimant and who sets forth in his report his medical
findings in his area of competence may be received as
evidence in a disability hearing, and despite its hearsay
character and an absence of cross-examination, and despite
the presence of opposing direct medical testimony and
testimony by the claimant himself, may constitute evidence
supportive of a finding by the hearing examiner adverse to
the claimant when the claimant has not exercised his right to
subpoena the reporting physician and thereby provide
himself with the opportunity for cross-examination of the
physician.
Perales, 402 U.S. at 402. “Due process requires that a claimant be given the opportunity to
cross-examine and subpoena the individuals who submit reports.” Coffin v. Sullivan, 895 F.2d
1206, 1212 (8th Cir. 1990). The Eighth Circuit has also found, however, that due process does
not afford social security claimants an absolute right to cross-examine individuals who submit a
report. Passmore v. Astrue, 533 F.3d 658, 665 (8th Cir. 2008); see also Hepp, 511 F.3d at 806

3

The U.S. Supreme Court has held that a person receiving benefits has a property interest in the continued receipt of
benefits. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Neither the U.S. Supreme Court nor the 8th Circuit
has decided whether a social security disability applicant has a protected property interest in benefits that he or she
seeks to receive, but they have assumed so without deciding. See Richardson v. Perales, 402 U.S. 389, 401-402
(1971), Hepp v. Asture, 511 F.3d 798, 804, n. 5 (8th Cir. 2008).
7

(due process under the 5th Amendment does not require in-person cross-examination in social
security disability hearings).
In this case, the Court finds that it would have been preferable for the ALJ to notify
Hafford before the supplemental hearing that Dr. Mizra would not be available to testify. The
purpose of the supplemental hearing was to cross-examine Dr. Mizra. If the ALJ had notified
Hafford, then Hafford could have sought leave to submit written interrogatories to Dr. Mizra
without the need for a supplemental hearing, requested to continue the hearing to another date, or
requested a subpoena for Dr. Mizra.4 The Court finds, however, that Hafford was not prejudiced
by this situation. In Passmore, the Eighth Circuit endorsed the use of a substitute medical
expert. Passmore, 533 F.3d at 665. When Hafford learned that Dr. Mizra was not available, he
could have preserved his right to cross-examine Dr. Mizra by requesting leave to submit written
interrogatories to him.

Hafford’s counsel also failed to question Dr. Lewin regarding Dr.

Mizra’s report. (Tr. 85-88.) Unfortunately, Hafford’s counsel assumed that the ALJ would
accept Dr. Lewin’s testimony that Hafford met a listing and make a finding of disability. (Tr.
252-253.) The ALJ was not required to adopt Dr. Lewin’s report, because “the ALJ is not
required to rely entirely on a particular physician’s opinion or choose between the opinions of
any of the claimant’s physicians.” Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011). “It is the
ALJ's function to resolve conflicts among the opinions of various treating and examining
physicians.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007). “The ALJ may reject the
conclusions of any medical expert, whether hired by the claimant or the government, if [the
conclusions] are inconsistent with the record as a whole.” Id. The Court recognizes that this
situation is unique, because it would be expected, as in Passmore, that the substitute medical

4

At the request of a party, “when it is reasonably necessary for the full presentation of a case,” the ALJ can issue a
subpoena for the appearance and testimony of witnesses. 20 C.F.R. §§ 404.950(c), 416.1450(c).
8

expert would be able to testify regarding the medical findings in Dr. Mizra’s report. See
Passmore, 533 F.3d at 665. In this case, the opinions of Dr. Mizra and Dr. Lewin were opposite.
The ALJ’s initial opinion of April 14, 2011, indicates that the ALJ gave Dr. Mizra’s opinion
more weight. The ALJ stated,
If one wants to get in a “psychiatrist duel,” the opinion by
Dr. Mizra, who actually saw and examined the claimant and
who also considered his complete medical history and all of
his complaints yet found no reason to impose any mental
restrictions, is more credible than the opinion of Dr. Lewin,
who never actually saw or examined the claimant, if one
casts aside both polar-opposite, one-shot opinions aside, the
remaining records from Dr. Khunuja, Dr. Haiderzad and
others do not show mental disability.
(Tr. 130.) In response to the ALJ’s initial decision, Hafford’s counsel stated he was surprised at
the decision and then asked the ALJ to correct a “gross” factual error- that he had requested Dr.
Lewin testify. (Tr. 252.) Hafford’s counsel only sought correction of the factual error; he did
not ask to submit interrogatories or ask for another opportunity to cross-examine Dr. Mizra. (Tr.
252-253.) Based on the foregoing, because Hafford does not have an absolute right to in-person
cross-examination and did not pursue other alternatives to obtaining Dr. Mizra’s testimony,
including through interrogatories, the Court finds that Hafford’s due process rights were not
violated.
B.

Treating Physicians’ Opinions

Next, Hafford contends that the opinions of Hafford’s treating physicians, Dr. Khanuja,
Dr. Cox, and Dr. Haiderzad are entitled to substantial weight. Hafford also contends that the
ALJ should not have relied upon Dr. Mizra’s opinion, because he examined him only once.
Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s

9

opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-2p. “Whether the ALJ grants
a treating physician’s opinion substantial or little weight, the regulations provide that the ALJ
must ‘always give good reasons’ for the particular weight given to a treating physician’s
evaluation.” Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
The record shows that Dr. Khanuja and Dr. Haiderzad treated Hafford for his mental
impairments and Dr. Cox treated him primarily for physical impairments. (Tr. 439-454, 487493, 839-846, 889-900, 856-860, 864-870, 879-884, 903-928, 930-1030, 1042-1048, 10651070.) The only “opinion” in the record from Dr. Haiderzad or Dr. Khanuja, outside of their
treatment notes, is a handwritten note from Dr. Haiderzad from May 1, 2008. The note stated
I am writing this letter at the request of the client. Client
recently been switched under my services at Family
Counseling Center. He carries dx of major depr. w/psychotic
features & panic disorder. I believe considering his medical
co-morbidity of report of COPD, he is not capable of gainful
employment at present. Pls feel free to contact if needed.
(Tr. 489.) A review of the medical records shows that during this time Hafford’s mental status
exams were primarily normal, with some side effects from medications, which were adjusted.
The treatment records also show an improvement of Hafford’s symptoms of sleep problems,
hallucinations, and agitation over time. Moreover, Dr. Haiderzad’s opinion that he was unable to
work was not supported by the other medical evidence in the record. Further, although the ALJ
gave greater weight to Dr. Mizra’s opinion over Dr. Lewin, he did not give Dr. Mizra’s opinion
controlling or substantial weight. (Tr. 13.) The RFC determination was less restrictive than Dr.
10

Lewin’s opinion and more restrictive that Dr. Mizra’s opinion. (Tr. 14-20.) Dr. Cox did not give
an opinion regarding Hafford’s work related functions and did not impose any work related
restrictions on him. Based on the foregoing, the Court finds that the ALJ did not err in failing to
give substantial weight to the opinions of Dr. Khanuja, Dr. Cox, and Dr. Haiderzad.
C.

Credibility Determination

Finally, Hafford contends that the ALJ improperly discredited his credibility, by stating
that his allegations were inconsistent with the objective medical findings. While the claimant
has the burden of proving that the disability results from a medically determinable physical or
mental impairment, direct medical evidence of the cause and effect relationship between the
impairment and the degree of claimant’s subjective complaints need not be produced.” Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). A claimant's subjective complaints may not be
disregarded solely because the objective medical evidence does not fully support them. Id. The
absence of objective medical evidence is just one factor to be considered in evaluating the
claimant’s credibility and complaints. Id. The ALJ must fully consider all of the evidence
presented relating to subjective complaints, including the claimant's prior work record, and
observations by third parties and treating and examining physicians relating to such matters as:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and
intensity of the claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any
medication; and
(5) the claimant’s functional restrictions.

11

Id. The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the claimant’s complaints. Guilliams v. Barnhart, 393 F.3d
798, 802 (8th Cir. 2005). “It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he considered all of the evidence.” Id. The ALJ, however, “need
not explicitly discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). The ALJ need only acknowledge and consider those factors. Id. Subjective complaints
may be discounted if there are inconsistencies in the evidence as a whole. Polaski at 1322.
Although credibility determinations are primarily for the ALJ and not the court, the ALJ’s
credibility assessment must be based on substantial evidence. Rautio v. Bowen, 862 F.2d 176,
179 (8th Cir. 1988).
In this case, the ALJ noted that Hafford had a steady work record up to and including his
alleged onset date of disability. (Tr. 16.) The ALJ could consider consistency with the overall
medical evidence when evaluating Hafford’s credibility. See Goff v. Barnhart, 421 F.3d 785,
792 (8th Cir. 2005) (ALJ can disbelieve subjective complaints if there are inconsistencies in the
evidence as a whole and lack of corroborating evidence is just one of the factors the ALJ
considers). The ALJ could also consider that Dr. Khanuja stated that Hafford’s “presentation
was atypical due to above MSE” and that his presentation was “somewhat attention seeking” and
“dramatic.” (Tr. 443, 444.) Dr. Khanuja also indicated that he considered the “element of
sec[ondary] gain due to atypical presentation.” (Tr. 443.) “An ALJ may discount a claimant’s
allegations if there is evidence that a claimant was a malingerer or was exaggerating symptoms
for financial gain.” Davidson v. Astrue, 578 F.3d 838 (8th Cir. 2009). Based on the foregoing,
the ALJ considered several factors in evaluating Hafford’s credibility and the ALJ’s credibility
determination was supported by substantial evidence in the record as a whole.

12

Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Doc. 1, 10.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Carolyn W.
Colvin, Acting Commissioner of Social Security for Michael Astrue.
Dated this 26th day of March, 2014.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

13