Simpson v. Colvin

Filing 20

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order isentered this same date. Signed by Magistrate Judge Nannette A. Baker on 10/16/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

PRESTON SIMPSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 1:13-CV-168 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 1383(c)(3) for judicial review of the
Commissioner’s final decision denying Preston Simpson’s application for
supplemental security income (SSI) under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381, et seq. All matters are pending before the undersigned United
States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. §
636(c). For the reasons set forth below, the Commissioner’s decision is affirmed.
I. Procedural History
Plaintiff Preston Simpson applied for SSI on April 23, 2010, claiming that
he became disabled on January 1, 1993, because of depression, chemical
imbalance, anxiety, and other mental conditions. (Tr. 221-27, 268.) On July 19,
2010, the Social Security Administration denied plaintiff’s claim for benefits. (Tr.

123, 125-28.) At plaintiff’s request, a hearing was held before an administrative
law judge (ALJ) on April 12, 2012, at which plaintiff and a vocational expert
testified. (Tr. 73-122.) A supplemental hearing was held on August 27, 2012, at
which plaintiff and a medical expert testified. (Tr. 44-72.) On September 7, 2012,
the ALJ issued a decision denying plaintiff’s claim for benefits, finding plaintiff
able to perform work as it exists in significant numbers in the national economy.
(Tr. 25-38.) After the receipt of additional evidence, the ALJ reopened the
decision and issued a supplemental decision on September 27, 2012, again finding
plaintiff able to perform other work as it exists in significant numbers in the
national economy. (Tr. 9-19.) On September 18, 2013, the Appeals Council
denied plaintiff’s request for review of the ALJ's decision. (Tr. 1-3.)1 The ALJ's
determination of September 27, 2012, thus stands as the final decision of the
Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff raises numerous claims that
the final decision is not supported by substantial evidence on the record as a whole.
Specifically, plaintiff claims that with his multiple diagnosed mental impairments
1

The Appeals Council stated in its Notice of Action that it was addressing plaintiff’s request for
review “of the Administrative Law Judge’s decision dated September 14, 2012.” (Tr. 1.)
Because the decisions issued by the ALJ in this cause were dated September 7 and September
27, 2012, it is unclear which decision was considered by the Appeals Council. In his brief,
plaintiff avers that the Appeals Council declined to review the ALJ’s September 27, 2012,
decision. The undersigned therefore considers the Appeals Council’s reference to a “September
14, 2012,” decision to be a scrivener’s error and not to affect the outcome of this case.
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and the effects thereof, he meets a listing for a disabling mental disorder under §
12.00 of the Listings of Impairments and that the ALJ erred in finding otherwise.
Plaintiff also claims that the ALJ failed to consider his learning disorder and low
Global Assessment of Functioning (GAF) scores and, further, that the ALJ erred
by relying on inaccurate evidence of drug use in determining his subjective
complaints not to be credible. Plaintiff also contends that the ALJ erred by failing
to consider a closed period of disability. Plaintiff further argues that the ALJ failed
to account for his limited ability to work with others when determining his mental
residual functional capacity (RFC). Finally, plaintiff contends that the ALJ erred
when he failed to pose a hypothetical question to a vocational expert at the
supplemental hearing. Plaintiff requests that the matter be reversed and remanded
to the Commissioner for an award of benefits.
II. Testimonial Evidence Before the ALJ
A.

Hearing Held on April 12, 2012
1.

Plaintiff’s Testimony

At the hearing on April 12, 2012, plaintiff testified in response to questions
posed by the ALJ. Plaintiff was unrepresented at the hearing.
At the time of the hearing, plaintiff was thirty-one years of age. (Tr. 88.)
Plaintiff has an eighth grade education and never received his GED. (Tr. 90.)
Plaintiff is married and has three children, ages nine years, seven years, and five
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months. (Tr. 88-89.) Plaintiff lives alone in a trailer. Plaintiff receives food
stamps and Medicaid assistance. (Tr. 89-90.)
In April 2010, plaintiff was released from prison after having served twelve
years for the offenses of Statutory Rape, Stealing, and Child Molestation. (Tr. 9192, 94.) Plaintiff occasionally works odd jobs, such as mowing lawns or
discarding appliances, but he has had no steady employment since his release.
Plaintiff testified that he worked in 2010 for Rose Concrete forming concrete
molds but was fired from this job because his mood was unstable. (Tr. 91-92.)
Plaintiff testified that he has applied for other jobs but has not been hired because
of his status as a convicted sex offender. (Tr. 92-93.)
Plaintiff testified that he began having emotional disturbances in January
1993 when he was twelve years of age that led to criminal activity. Plaintiff
testified that his emotional problems consisted of moods, depression, and anxiety
and that such problems stemmed from physical, sexual, and emotional abuse he
experienced as a child. (Tr. 95-96.)
Plaintiff testified that he has suffered from depression since childhood and
currently experiences crying spells on occasion. Plaintiff testified that he also has
anxiety but controls it by trying to keep it to himself. (Tr. 108.) Plaintiff testified
to five suicide attempts and to previously being assigned to a hospital mental unit
because of an attempt. (Tr. 109.) Plaintiff testified that he took medication and
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was counseled regularly while in prison and was referred to outside counseling
upon his release. (Tr. 113.) Plaintiff testified that he has been prescribed
Citalopram as an anti-depressant but has been out of this medication since January.
(Tr. 103.) Plaintiff also testified that he has been prescribed Busiprone, Doxepin,
Ativan, and Klonopin. (Tr. 104-05.) Plaintiff testified that taking medication
“definitely” helped with his anxiety. (Tr. 109.)
Plaintiff testified that he rarely drinks and has never had a drinking problem.
Plaintiff testified that he smoked marijuana and used drugs before he went to
prison but currently does not use any illicit substances. (Tr. 102.)
As to his current daily activities, plaintiff testified that he has no routine
regarding what time he gets up any given day. (Tr. 96.) Plaintiff testified that he
generally sits around during the day, talks on the telephone with his wife or
mother, and may go out looking for work if he has access to a vehicle. (Tr. 97.)
Plaintiff cooks his own meals, washes his own dishes, and generally performs his
own household chores. Plaintiff’s mother does his laundry because he does not
have a washer or dryer. Plaintiff goes to the grocery store with his mother. (Tr.
99-100.) Plaintiff testified that he may take a walk with his dog during the
evening. He tries to see his son on the weekends. Plaintiff testified that he has no
friends and does not like to be around people other than his family or people he has
grown up with. (Tr. 98, 114-15.) Plaintiff attends church when he can but is
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limited because he does not have a vehicle. (Tr. 98-99.) Plaintiff testified that he
no longer volunteers at an animal shelter because of transportation difficulties.
(Tr. 114.) Plaintiff reads his mail and sometimes reads magazines and the Bible.
(Tr. 99.) Plaintiff testified that his hobbies include fishing and building jewelry
boxes and other things out of playing cards. (Tr. 101.)
2.

Testimony of Vocational Expert

Susan Shea, a vocational expert, testified at the hearing in response to
questions posed by the ALJ and plaintiff.
Ms. Shea testified that plaintiff had no past relevant work. (Tr. 117.)
The ALJ asked Ms. Shea to assume an individual thirty-one years of age
with a limited education, no past work experience, and no exertional limitations.
The ALJ asked Ms. Shea to further assume the person to be limited to simple,
repetitive tasks and instructions and to be further limited to only occasional
interaction with supervisors, co-workers, and the public. Ms. Shea testified that
such a person could perform medium, unskilled work as a manufacturing helper, of
which 11,000 such jobs exist in the State of Missouri; laundry worker, of which
5,300 such jobs exist in the State of Missouri; and machine feeder, of which 11,000
such jobs exist in the State of Missouri. (Tr. 117-18.)
In response to Ms. Shea’s testimony, plaintiff engaged in a colloquy
whereby he averred that these jobs are not available to him as demonstrated by his
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failed attempts to secure employment in these or similar jobs. Plaintiff further
averred that his psychological state, as well as having to report his status as a
registered sex offender, prevent him from securing employment. (Tr. 120-21.)
B.

Hearing Held August 27, 2012
1.

Plaintiff’s Testimony

Plaintiff was represented by counsel at the hearing on August 27, 2012, and
testified in response to questions posed by the ALJ and counsel.
Plaintiff currently lives in a small house next door to his mother. Plaintiff
receives food stamps. (Tr. 51.)
Plaintiff testified that he was fired from Rose Concrete after working only
three days. Plaintiff testified that his anxiety and post-traumatic stress disorder
caused him to be unable to concentrate on the job. Plaintiff testified that he could
not function at the time because he had no medication or insurance when he was
released from prison. (Tr. 49.)
Plaintiff testified that he has periods whereby he feels confident and feels he
can accomplish anything. During such periods, plaintiff cannot sleep, has racing
thoughts, and abundant energy. Plaintiff testified that he starts many projects but
never finishes them because he has difficulty completing tasks. Plaintiff testified
that he also experiences periods of depression whereby he does not have the energy
to get out of bed and he loses interest in everything in life. Plaintiff testified that
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such periods have lasted up to four or five days and that his mother cares for him
during these times. (Tr. 54-55.)
Plaintiff testified that he went to the hospital a few months prior because of
suicidal thoughts and was given medication. (Tr. 55.) Plaintiff testified that he
continues to have suicidal thoughts because he feels he is a lost cause and is
misunderstood by the world. (Tr. 62, 64.) Plaintiff testified that he currently
undergoes counseling and takes Celexa, Doxepin, Ativan, and Buspar, which help
his condition. (Tr. 56-57, 66.) Plaintiff testified that he experiences side effects
from Doxepin in that it “put[s him] out” for about fourteen hours, as though he is
in a drug-induced coma, and he remains groggy when he awakens. (Tr. 64.)
Plaintiff testified that he is anxious and experiences racing thoughts in public
because he feels as though everyone is watching him and he feels the need to
escape the environment. Plaintiff testified that he also experiences flashbacks of
traumatic events in his life. (Tr. 65-66.)
Plaintiff testified that he experienced chest pain while in prison, which his
doctor attributed to anxiety. Plaintiff testified that he continues to experience such
symptoms and that they could occur at any given time. (Tr. 57-58.) Plaintiff
testified that the prison environment exacerbated his anxiety and depression, and
he was placed in protective custody because he could not function. Plaintiff also
testified to being raped in prison. (Tr. 58-59.)
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Plaintiff testified that he has not smoked marijuana in months. (Tr. 61.)
As to his daily activities, plaintiff testified that he gets up, lets his dog out,
prepares a cup of coffee, sweeps if necessary, and then just sits in the house.
Plaintiff testified that he calls and speaks to his nine-month-old son on the
telephone. (Tr. 51-52.) Plaintiff testified that he goes to the grocery store once a
month but goes at night. Plaintiff testified that he drives and currently has access
to a vehicle. (Tr. 53.) Plaintiff testified that he has no friends and does not trust
most people. (Tr. 60-61.)
2.

Testimony of Medical Expert

Dr. Kathleeen O’Brien, a licensed clinical psychologist, testified as a
medical expert at the hearing in response to questions posed by the ALJ.
Dr. O’Brien testified that the medical record showed that plaintiff had a
mood disorder, which is associated with Listing 12.04, and that this disorder had
been referred to throughout the record as an adjustment disorder, depressant
disorder, or bipolar disorder. Dr. O’Brien testified that a diagnosis of bipolar
disorder was not substantiated on recent psychological testing, and that plaintiff’s
medications were consistent with treatment for depressive disorder or adjustment
disorder. (Tr. 68-69.)
Dr. O’Brien testified that the record showed plaintiff to also have an anxiety
disorder, which is associated with Listing 12.06, and that this disorder had been
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referred to in the record as a generalized anxiety disorder or post-traumatic stress
disorder (PTSD). (Tr. 69.)
Dr. O’Brien testified that the most recent psychological evaluation assigned
a diagnosis of anti-social personality disorder. Dr. O’Brien noted that this
diagnosis had not been rendered previously and was most likely related to
plaintiff’s incarceration and childhood history of oppositional defiant disorder. Dr.
O’Brien testified that such a childhood diagnosis is not applicable to the present
circumstances. (Tr. 69.)
Dr. O’Brien also testified that there was evidence in the record of a learning
disorder with special education, as well as a non-medical report of attention deficit
hyperactivity disorder (ADHD). (Tr. 69.)
Dr. O’Brien testified that the relevant listings associated with plaintiff’s
mental impairments were Listings 12.04, 12.06, and 12.08. (Tr. 69.)
Dr. O’Brien testified to her opinion that plaintiff’s activities of daily living
were mildly impaired; that his social functioning was moderately impaired; and
that his concentration, persistence, and/or pace were mildly impaired. Dr. O’Brien
testified that there was no evidence of true episodes of decompensation in the
record. Dr. O’Brien testified to her opinion that plaintiff’s mental impairments
would cause some restrictions, but none at listing level severity. To support this
opinion, Dr. O’Brien testified that the record showed that plaintiff’s impairments
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were fairly managed on an outpatient basis and that, to the extent he required
emergency room treatment in July and August 2011, his condition was not
considered to be severe enough to require admittance for a long stay. Dr. O’Brien
also cited to evidence of plaintiff’s refusal to take medication and attend
counseling sessions while incarcerated. (Tr. 70-71.)
3.

Vocational Expert

Margaret H. Ford, a vocational expert, was also present at the hearing on
August 27, 2012. The ALJ determined not to elicit testimony from Ms. Ford,
indicating that the vocational expert’s testimony from the previous hearing
continued to be applicable. (Tr. 71.)
When the ALJ asked counsel if there was anything further, counsel
responded, “No, sir. I don’t think so.” The hearing then concluded. (Tr. 71-72.)
III. Documentary Evidence / September 7, 2012
When the ALJ rendered his first decision in this cause on September 7,
2012, he had before him the following documentary evidence:
A.

Education Records
In a Diagnostic Summary Report dated November 4, 1993, it was noted that

plaintiff was enrolled in learning disabled, self-contained classes and regular
elective classes. Plaintiff was thirteen years of age and in the seventh grade. It
was noted that plaintiff qualified for learning disabled services at the beginning of
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second grade. Current testing showed plaintiff to experience weaknesses in
spelling skills, basic computational skills, range of general factual information,
visual performance, ability to benefit from sensory-motor feedback, speed of
mental operation, vocabulary and verbal paraphrasing, and social/emotional
development with the following observed to be significant to very significant:
poor ego strength, poor intellectuality, poor academics, poor attention, poor
impulse control, poor sense of identity, excessive suffering, poor anger control,
excessive sense of persecution, excessive aggressiveness, excessive resistance, and
poor social conformity. Plaintiff was noted to have relatively stronger written
language skills. It was determined that plaintiff met the eligibility criteria to be
classified as behaviorally disordered. (Tr. 386-92.)
In February 1994, plaintiff’s teacher reported that plaintiff was performing
far below grade level in world geography, language arts, and math – all of which
were taught in a self-contained classroom modified for plaintiff’s level. Plaintiff
performed at grade level in science. Plaintiff’s IQ scores were noted to be verbal
86, performance 80, and full scale 81. (Tr. 407-08.)
An Individual Education Plan (IEP) was completed by the Division of Youth
Services and Department of Social Services while plaintiff was in the seventh
grade. In the IEP, it was reported that plaintiff interacted appropriately with his
peer group and appeared to be making good progress in appropriately handling
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situations involving authority figures. It was noted that plaintiff appeared to be
easily frustrated and impatient with himself and tended to give up on his learning
ability. Plaintiff was placed in a regular classroom with modification in an
alternative school. (Tr. 378-83.) In his final report card for seventh grade, plaintiff
earned an F in physical education/health; D’s in language arts and contemporary
issues; C’s in general science, reading, and life skills; and a B in mathematics. (Tr.
384.)
During the first semester of ninth grade, plaintiff earned F’s in math,
physical science, and American history; a D in art; and C’s in language arts and
physical education. Plaintiff withdrew from school during the second semester.
(Tr. 427.)
B.

Medical Records
On March 2, 1994, plaintiff visited the Community Counseling Center

(CCC) with complaints of feeling overwhelmed. Plaintiff was thirteen years of
age. Plaintiff’s father reported concern regarding plaintiff’s choices, noting
plaintiff to currently be on probation for breaking into a home with a group of
peers. Plaintiff’s father reported that plaintiff had been diagnosed with attention
deficit disorder in the past and was currently enrolled in classes for behavioral
disorder. Mental status examination showed plaintiff to be tearful with a depressed
affect and some agitation. No impairment in thought process was noted. Plaintiff
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was noted to be focused and responsive. Licensed social worker Barbara Morgan
noted plaintiff to be pleasant and to probably have average intellectual functioning.
Diagnostically, Ms. Morgan noted that adjustment disorder with mixed emotional
features was to be ruled out. Parent-child problems and other interpersonal
problems were noted. Ms. Morgan assigned a current GAF score of 70 and opined
that plaintiff’s highest score within the past year was 68.2 It was determined that
plaintiff would undergo individual sessions and joint sessions with his father to
understand and cope with his feelings of depression. (Tr. 443-44.)
Plaintiff failed to appear for a scheduled appointment with Ms. Morgan on
March 21, 1994. On March 30, plaintiff’s father reported to Ms. Morgan that
plaintiff’s school had recommended that he apply for Medicaid and disability on
plaintiff’s behalf. An appointment was scheduled with a psychiatrist for
assessment. (Tr. 445.) On April 28, plaintiff failed to appear for a scheduled
appointment with Ms. Morgan. (Tr. 446.)
On May 13, 1994, plaintiff visited Dr. Reeta Rohatgi at CCC for a
psychiatric evaluation upon referral from Ms. Morgan. Plaintiff’s chief complaint
was that he had decreased energy and was not doing well in school academically.
2

A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score of 61 to 70 indicates some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the household), but generally functioning
pretty well, has some meaningful interpersonal relationships.
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Plaintiff reported feeling depressed, having crying spells and decreased energy,
and having no friends. Plaintiff denied any symptoms of anxiety, psychosis, or
mood swings. Mental status examination showed plaintiff to have a depressed
mood and to be despondent and dysphoric. Plaintiff cried during most of the
interview. Plaintiff reported having feelings of loneliness and that he felt he was
picked on by the kids and rejected by his family. Dr. Rohatgi noted plaintiff to
have very low self- esteem. Dr. Rohatgi diagnosed plaintiff with depressive
disorder, not otherwise specified and “other interpersonal problem.” ADHD was
to be ruled out. Dr. Rohatgi also diagnosed plaintiff with mixed developmental
disorder in arithmetic, reading, and language. Plaintiff was assigned a GAF score
of 65. Dr. Rohatgi prescribed Imipramine and instructed plaintiff to continue with
individual and family therapy. (Tr. 447-49.)
No further treatment appears in the record until May 1996 when plaintiff’s
father telephoned CCC requesting services because of plaintiff’s self-destructive
behavior, which included stealing, using drugs, and not attending school.
Plaintiff’s father also reported that plaintiff made aggressive threats but did not
actually make homicidal threats. An intake assessment was scheduled. (Tr. 450.)
On July 2, it was noted that plaintiff was not doing well in school, was using drugs,
and had an attitude problem. It was determined that it was not a crisis situation,
and information was given regarding drug treatment. (Tr. 452.) On July 31,
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plaintiff failed to appear for a scheduled appointment at CCC. (Tr. 453.)
During another telephone call to CCC in September 1996, it was reported
that plaintiff had problems at school, felt stressed out, and could not function. It
was noted that plaintiff was in the eleventh grade, could not do ninth grade work,
and could not keep his mind on what he was doing. It was noted that plaintiff
claimed that he was molested by his step siblings when he was younger. Plaintiff’s
father reported that plaintiff was depressed, tearful, and immature for his age.
Plaintiff was non-violent. An appointment was made. (Tr. 454.)
Plaintiff thereafter visited CCC on September 11 and reported having
trouble concentrating at school and that he did not want to be held back again.
Plaintiff reported having trouble sitting still, that his mind wanders, and that his
thoughts are always “zipping.” Plaintiff reported a history of drug abuse as well as
being a victim of sexual abuse. Mental status examination showed plaintiff to be
talkative and bright. Plaintiff reported having no suicidal ideation. Licensed
professional counselor John D. Cooley noted plaintiff to have remarkable insight
and judgment. Plaintiff was cooperative and friendly. LPC Cooley noted plaintiff
to have a full affect and mood. Plaintiff’s thought content was organized. LPC
Cooley noted plaintiff to be alert and knowledgeable. LPC Cooley diagnosed

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plaintiff with generalized anxiety disorder and assigned a GAF score of 75.3 It was
determined that options other than public school would be explored for plaintiff.
(Tr. 455-57.)
Plaintiff’s father called CCC on September 18, expressing concern that
plaintiff was worse than his counselor realized. Plaintiff was not making suicidal
threats. A psychiatric referral was considered. (Tr. 458.)
Plaintiff visited with LPC Cooley on September 24 and October 31, 1996,
who noted plaintiff to appear angry, depressed, and resentful and to have a “tough
guy” image about him. Between October 1 and November 25, 1996, plaintiff
failed to appear for three scheduled appointments with LPC Cooley. (Tr. 459-60.)
The record shows that plaintiff was evaluated at CCC in August 1997 upon
being incarcerated for Statutory Rape. Plaintiff was seventeen years of age. LPC
Gary Underwood administered the Millon Multiaxial Clinical Inventory III and the
Minnesota Multiphasic Personality Inventory II, which indicated that plaintiff
continued to suffer from some depression and anxiety that seemed chronic in
nature and dated back to early childhood. LPC Underwood identified instances
evidencing a pattern of self-defeating behavior. (Tr. 461-63.) LPC Underwood
opined that the “presence of a lot of structure is needed for an extended period of
A GAF score between 71 and 80 indicates symptoms that are transient and expectable
reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) with no
more than a slight impairment in social, occupational or school functioning (e.g., temporarily
failing behind in schoolwork).
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time if there is any hope of making a change in this young man.” (Tr. 463.) LPC
Underwood recommended that plaintiff be placed in a youth-based program,
undergo psychiatric evaluation for medication, and receive outpatient counseling to
assist in dealing with anger and resentment toward life. LPC Underwood opined
that incarceration in the Department of Corrections could worsen plaintiff’s
condition. (Tr. 463.)
The administrative record contains treatment records from the Missouri
Department of Corrections (MDOC) from October 2001 to April 2010. (See Tr.
467-701.) A review of these records shows plaintiff to have received mental health
treatment throughout his incarceration at the MDOC with such treatment including
counseling sessions, individual and group therapy, and medication management.
From October 2001 to September 2004, plaintiff received treatment in the
form of counseling only. Mental status examinations during this period were
largely unremarkable, with plaintiff exhibiting essentially normal behavior. To the
extent plaintiff experienced isolated exacerbations of anxiousness, paranoia, or
increased stress, they were observed to be situational in nature and related to
correctional staff conduct, family issues, and the anticipation of being released
from prison.
In September 2004, plaintiff underwent a psychiatric evaluation from which
he was diagnosed with mood disorder, not otherwise specified. It was noted that
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plaintiff also reported symptoms of ADHD, mixed personality disorder, and a
history of oppositional defiant disorder and conduct disorder but currently
displayed no symptoms thereof. Bipolar disorder was to be ruled out. Tegretol
was prescribed and plaintiff responded well to the medication. In January 2005,
plaintiff’s medication was increased. Risperidone was added to plaintiff’s
medication regimen in February for mood stabilization given his irritability,
paranoia, and inability to feel pleasure. In March and April, plaintiff was
exhibiting no symptoms of a mental disorder and he requested to be weaned from
medication.
Beginning in May 2005, plaintiff stopped taking his medications but
continued with counseling. Mental status examinations were essentially
unremarkable and, in July, it was determined that his mood disorder was in
remission. A GAF score of 70 was assigned. Throughout 2006, plaintiff
continued with counseling but was prescribed no medication. He occasionally
failed to appear for counseling sessions. Plaintiff’s mental status examinations
continued to be essentially normal, but plaintiff was repeatedly observed by his
counselors to be manipulative. Plaintiff received GAF scores demonstrating mild
symptoms and it was noted throughout that plaintiff had no mental health issues
and was doing fine. Likewise, in 2007, plaintiff continued to do well with
counseling. Increased episodes of stress were again noted to be situational in
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nature. Mental status examinations continued to be unremarkable and GAF scores
continued to range between 65 and 70, indicating mild symptoms.
In March 2008, plaintiff began to complain of mood swings, depression, and
paranoia. Plaintiff was observed to be irritable and angry, but counselors
continued to observe plaintiff to be manipulative with his treatment. Plaintiff was
seen by a psychiatrist in June, who diagnosed plaintiff with mood disorder and
anxiety disorder, not otherwise specified. Zoloft and Hydroxyzine were
prescribed, and continued counseling was ordered. Throughout the remainder of
2008, plaintiff was observed to be stable on this medication with his counselors
noting no symptoms. Plaintiff’s medication dosage was increased in January 2009
upon his complaints of increased anxiety, fear, and paranoia involving his
anticipated release. Thereafter, and through April, plaintiff was determined to be
stable upon this increased dosage. Beginning in May 2009, plaintiff refused his
medications.
In August 2009, plaintiff attempted suicide with a noose made from a bed
sheet. It was noted that plaintiff was distraught by being discharged from the
Missouri Sexual Offenders Program and was fearful of being institutionalized.
Plaintiff was considered stable upon his release from suicide watch and, in
September, was determined to be doing okay while on medication. Beginning in
October, plaintiff refused his medications as well as a psychiatric referral. Plaintiff
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failed to appear for counseling sessions in December 2009 and again in January
2010. Plaintiff refused treatment in February 2010 but reported having no
complaints. Mental status examination in March was normal. Plaintiff was
released from prison in April 2010 whereupon he filed for disability benefits.
On July 19, 2010, Stephen S. Scher, Ph.D., a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form in
which he opined that plaintiff’s anxiety and history of mood disorder caused mild
limitations in activities of daily living; moderate limitations in social functioning
and in maintaining concentration, persistence, or pace; and no repeated episodes of
decompensation of extended duration. (Tr. 711-21.) In a Mental RFC Assessment
completed that same date, Dr. Scher opined that in the domain of Understanding
and Memory, plaintiff was moderately limited in his ability to understand and
remember detailed instructions but was not otherwise significantly limited. In the
domain of Sustained Concentration and Persistence, Dr. Scher opined that plaintiff
was moderately limited in his ability to carry out detailed instructions but was not
otherwise significantly limited. In the domain of Social Interaction, Dr. Scher
opined that plaintiff was moderately limited in his ability to interact appropriately
with the general public and to accept instructions and respond appropriately to
criticism from supervisors, but was not otherwise significantly limited. In the
domain of Adaptation, Dr. Scher opined that plaintiff was not significantly limited
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in any regard. (Tr. 722-25.)
Plaintiff did not seek or receive mental health treatment until July 4, 2011,
when he went to the emergency room at Southeast Missouri Hospital (SE Hospital)
requesting an evaluation for increased stress and suicidal and homicidal ideations.
Plaintiff was thirty years of age. Plaintiff reported having previously received
medications while in prison, but that he was released without medication and could
no longer suppress his feelings. Psychiatric examination showed plaintiff to have
an anxious affect. Plaintiff was oriented times three and had normal concentration
and memory. Plaintiff’s insight and judgment were noted to be poor. Plaintiff had
some thought of hurting himself or others but had no plan. Plaintiff expressed
thoughts that his family may hurt him. Historical diagnoses of bipolar disorder and
PTSD were noted. Plaintiff was diagnosed with depression. (Tr. 863-64.)
Plaintiff was admitted to the hospital and given Buspar, Celexa, Klonopin, and
Sinequan. (Tr. 859.)
Upon admission to the hospital, plaintiff was evaluated by Dr. John Lake
and reported that he was struggling with adjusting to life outside of prison and that
he was chronically fearful and anxious. Plaintiff reported having recently had bad
thoughts and felt guilty and depressed for having intense sexual fantasies and
lustful thoughts inasmuch as he was taught in prison that such thoughts were
unacceptable. Plaintiff reported not wanting to act on these thoughts but instead
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wanted to gain control of them. Plaintiff denied any recent use of alcohol or illicit
drugs. Mental status examination showed plaintiff to be visibly anxious and
depressed. Plaintiff’s affect was mildly labile. Plaintiff was cooperative and
friendly, and his flow of thought was logical and goal directed. Plaintiff had mild
paranoid ideations and fearfulness of others. His insight and judgment were noted
to be impaired. Dr. Lake diagnosed plaintiff with PTSD. Mood disorder was to be
ruled out. Dr. Lake assigned a GAF score of 40.4 (Tr. 856-58.) Upon receiving
therapeutic treatment, plaintiff was discharged on July 8. (Tr. 854-55.)
On August 2, 2011, plaintiff visited Daniela Kantcheva, APRN, BC, MHNP,
for psychotherapy as a follow up from his admission at SE Hospital. Plaintiff
reported having difficulty adjusting to life outside of prison and was having
flashbacks and nightmares. Plaintiff reported feeling anxious, helpless, and
hopeless. Mental status examination was unremarkable in that plaintiff’s mood
and affect were appropriate; his thought process was logical; he was oriented times
four; he had fair insight and judgment; and he denied any suicidal or homicidal
ideations. Ms. Kantcheva diagnosed plaintiff with PTSD. Bipolar disorder was to
be ruled out. Plaintiff was instructed to continue with Doxepin, Celexa, and
Buspar. Plaintiff was given samples of Saphris and was instructed to follow up in
A GAF score between 31 and 40 indicates some impairment in reality testing or
communication (e.g., speech is at times illogical, obscure, or irrelevant) or a major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable to work).
- 23 4

two weeks. It was noted that plaintiff was scheduled to follow up with Dr. Knot in
September for psychiatric evaluation and medication management. (Tr. 823.)
Plaintiff was admitted to the emergency room at SE Hospital on August 14,
2011, with suicidal ideation. Plaintiff was noted to have superficial lacerations to
both wrists, and he reported that he cut himself with his pocketknife while walking
to the hospital after fighting with his girlfriend. Plaintiff was placed on suicide
precaution. Plaintiff denied any alcohol or drug abuse. Psychiatric evaluation
showed plaintiff to have an agitated affect. Plaintiff was oriented times three and
had normal insight, concentration, and memory. Plaintiff’s judgment was noted to
be poor. Plaintiff stabilized while in the emergency room and was admitted to the
psychiatric unit at the hospital. (Tr. 845-47.)
Upon his admission to the psychiatric unit, plaintiff was evaluated by Dr.
Lake and reported that he was not suicidal but instead was taking out his
frustration and anger on himself. It was noted that plaintiff’s girlfriend kicked him
out and told him to leave. Plaintiff’s only complaint was noted to be anxiety.
Plaintiff reported being compliant with his medication and with his counseling
sessions at CCC. Dr. Lake diagnosed plaintiff with PTSD and assigned a GAF
score of 45 upon admission.5 Dr. Lake determined plaintiff’s cutting to be more of
5

A GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).
- 24 -

an act of self-mutilation and not an indicator of suicide risk. Dr. Lake determined
plaintiff to be stable for outpatient management. Plaintiff’s Klonopin was
discontinued. Plaintiff was started on Ativan for better control of anxiety. Plaintiff
was continued on his other medications and was instructed to follow up at CCC as
scheduled. Plaintiff was assigned a GAF score of 55 upon his discharge on August
15.6 (Tr. 840-43.)
Plaintiff returned to the emergency room at SE Hospital on August 17 with
complaints of suicidal ideation, depression, and anxiety. Plaintiff reported his
Ativan to have been ruined the day before and that he had become very anxious
with worsening depression. Plaintiff reported that he walked to a bridge with the
intent to jump in the river but decided to cut his wrist and forearm while sitting on
the bridge. The police brought him to the emergency room. Plaintiff reported no
longer being suicidal and that he wanted to go home. Blood tests showed the
presence of cannabinoids. Plaintiff denied alcohol or drug abuse. Dr. Lake
determined plaintiff to be low risk and did not feel that plaintiff would benefit from
a repeat admission. Dr. Lake did not refill plaintiff’s Ativan. (Tr. 781, 836-38.)
On February 28, 2012, plaintiff underwent a consultative psychological
evaluation and reported to Ben Lanpher, Ph.D., that he experienced a lot of anxiety
6

A GAF score between 51 and 60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).
- 25 -

which made it difficult for him to go places. Plaintiff reported feeling that people
were following him and out to get him. Plaintiff reported not feeling safe in public
and that he was suicidal. Dr. Lanpher noted plaintiff to be taking no medications
in that he had run out of prescribed medication in January. Plaintiff reported
having been psychiatrically hospitalized twice in July 2011 but was not admitted in
August 2011 because of a lack of insurance. Plaintiff reported having nightmares
and flashbacks regarding his previous sexual abuse and that he also had insomnia.
Plaintiff reported symptoms characteristic of bipolar disorder. Plaintiff reported
that he was recently married and that his marriage was happy and hopeful.
Plaintiff reported not living with his wife, however, and that her ex-husband was
seeking custody of the children given plaintiff’s status as a registered sex offender.
Plaintiff denied any drug use since being released from prison. Mental status
examination showed plaintiff to have a depressed and anxious mood with a labile
affect. Plaintiff’s speech was somewhat monotone and his motor behavior was
lethargic. Plaintiff reported no current suicidal ideation but admitted to having
such thoughts as recent as three weeks prior. Plaintiff had no homicidal thoughts.
Plaintiff demonstrated good abstract thinking. He scored 28 out of 30 on the minimental status exam. Scores obtained on the Shipley test were perceived to fairly
depict plaintiff’s level of intellectual ability, which was determined to be in the
low-average range. Results of the MMPI-2RF were perceived as having
- 26 -

questionable validity. Dr. Lanpher concluded that plaintiff exhibited symptoms
characteristic of a mood disorder, with recurrent episodes of depression and
possibly episodes of mania. A diagnosis of bipolar disorder could not be
confirmed. Dr. Lanpher opined that plaintiff appeared to possess traits of
antisocial personality. Dr. Lanpher diagnosed plaintiff with mood disorder, not
otherwise specified; and generalized anxiety disorder. Dr. Lanpher determined
plaintiff’s current GAF score to be 44, with his highest score in the previous year
to be 53. Dr. Lanpher recommended that plaintiff undergo a psychiatric evaluation
for further assessment and treatment, including the assessment of potential benefits
of psychotropic medications. Dr. Lanpher further recommended that plaintiff
participate in individual counseling. (Tr. 865-69.)
IV. Supplemental Evidence / Post-September 7, 2012
Subsequent to entering his decision on September 7, 2012, the ALJ received
additional evidence into the record. The ALJ reopened the case to take such
evidence, after which he issued another decision on September 27, 2012. Such
additional evidence is as follows:
A.

Medical Records
On May 17, 2012, plaintiff visited clinical therapist Crendy Tarkington at

Bootheel Counseling Services (BCS) and Family Medical Clinic requesting
counseling and medication management. Plaintiff denied suicidal or homicidal
- 27 -

ideation. Plaintiff reported having episodes of depression and episodes of
abundant energy and anxiety. Plaintiff reported that he received a two-weeks’
supply of medication from the emergency room at SE Hospital about three or four
weeks prior and was now out of medication. Plaintiff reported his sleep and stress
to make him “not as sharp minded.” Plaintiff reported being unemployed for two
years and that he wanted to work. Plaintiff currently performed odd jobs such as
mowing grass, power washing, and having yard sales. Mental status examination
showed plaintiff’s mood, behavior, speech, motor activity, and thought content to
be appropriate. Plaintiff was noted to be paranoid and restricted. Plaintiff was
oriented times three and had intact memory, fair insight and judgment, and good
eye contact. He was determined not to be a current danger to himself or others.
Ms. Tarkington diagnosed plaintiff with mood disorder, not otherwise specified,
severe and assigned a GAF score of 60. An appointment with the medical clinic
was scheduled for June. Plaintiff reported that he would contact Medicaid in order
to schedule an earlier appointment with a physician for medication. Follow up
with individual counseling was planned. (Tr. 884-89.)
Plaintiff visited BCS’s medical clinic on June 6, 2012, to establish
medication management. Plaintiff reported his depression and anxiety to be at a
level ten on a scale of one to ten. Plaintiff reported having nightmares and
delusional and paranoid thoughts that people were out to get him. Plaintiff denied
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any substance abuse but reported that blood tests may yield positive results, which
led the evaluating clinician, Rosemary L. Collins, MHNP, BC, APRN, to question
plaintiff’s truthfulness.7 Plaintiff reported that he last smoked marijuana a couple
of months prior. NP Collins noted plaintiff to have been prescribed Buspar,
Hydroxyzine, and Citalopram by an emergency room doctor on May 2, 2012, but
otherwise had not been prescribed medication since December 2011. Plaintiff
reported that he responded well to Ativan in the past, and NP Collins noted Dr.
Lake to have likewise reported positive response. Mental status examination
showed plaintiff to be disheveled and agitated with fairly agitated psychomotor
activity. NP Collins noted plaintiff to be somewhat deceptive with his statements.
Plaintiff’s mood and affect were irritable to depressed and anxious. Plaintiff’s
thought process was goal directed and focused on obtaining medication. Plaintiff
was alert and oriented but was deceptive with memory recall. Concentration was
noted to be poor. Plaintiff reported being paranoid. Intellectual functioning was
estimated to be low average to borderline, and insight and judgment appeared to be
limited. Plaintiff had no suicidal or homicidal ideations. Plaintiff was given a
two-week supply of Ativan but it was determined that he would not be allowed to
continue on Ativan given that his substance abuse may be more than as he
7

While NP Collins was the evaluating clinician, staff psychiatrist Dr. Syed Sayeed also signed
the evaluation report.
- 29 -

reported. Celexa, Doxepin, and Buspar were also prescribed. It was determined
that plaintiff would need further evaluation before being diagnosed with PTSD.
Marijuana abuse and substance induced mood disorder were to be ruled out.
Plaintiff was diagnosed with mood disorder, not otherwise specified. A GAF score
of 50 was assigned. Plaintiff was instructed to continue with individual therapy
and to return in four weeks for follow up. (Tr. 878-81.)
Plaintiff visited Ms. Tarkington on June 15, 2012, and reported that he felt
better with medication and had improved with expressing his anger. Ms.
Tarkington noted plaintiff’s mood to be depressed, angry, and irritable. Plaintiff’s
thought process was noted to be paranoid. Plaintiff’s behavior, speech, and motor
activity were appropriate, and his memory was intact. Plaintiff’s insight and
judgment were fair. Ms. Tarkington determined plaintiff to pose no current danger
to himself or others. Plaintiff was instructed to return in one week. (Tr. 876.)
Plaintiff returned to NP Collins/Dr. Sayeed on June 20, 2012, and reported
doing well but requested that his dosage of Ativan be increased. It was noted that
plaintiff had a positive drug screen. Plaintiff reported that he had been “clean” for
two months and then admitted that he self-medicates with THC.8 Mental status
examination showed plaintiff to have a flat affect and his mood was dysphoric to
8

Tetrahydrocannabinol (THC) is marijuana’s main psychoactive ingredient. DrugFacts: Is
Marijuana Medicine?, National Institute on Drug Abuse (last revised Apr. 2014), available at
<http://www.drugabuse.gov/publications/drugfacts/marijuana-medicine>.
- 30 -

defensive. Plaintiff’s thought process was goal directed and his judgment and
insight were fair. Plaintiff had no suicidal or homicidal ideations. Plaintiff was
diagnosed with THC abuse and mood disorder. Substance induced mood disorder
was to be ruled out. A GAF score of 50 was assigned. Plaintiff was referred to Dr.
Sayeed and was instructed to return in one month. Plaintiff’s medications,
including Ativan, were refilled. (Tr. 873-74.)
Plaintiff returned to NP Collins/Dr. Sayeed on July 17, 2012, and reported
an increase in anxiety because of court appearances, his family being “split up”
because of his past, and financial issues. Plaintiff reported his depression to be
improving. Plaintiff had no suicidal or homicidal ideations. It was noted that
plaintiff had a fair response to his medications with no side effects. Plaintiff
denied THC use and alcohol use. Plaintiff was instructed to continue on his
current medication regimen until the results of drug screening were known, and his
medications were refilled. Plaintiff was diagnosed with THC abuse, mood
disorder, and substance induced mood disorder. Plaintiff again had a GAF score of
50. (Tr. 871-72.)
B.

Interrogatory Posed to Medical Expert
When Dr. O’Brien testified at the administrative hearing on August 27,

2012, she had not had the opportunity to review the medical/counseling records
from BCS that documented plaintiff’s treatment there from May through July
- 31 -

2012. In an interrogatory dated September 17, 2012, the ALJ asked Dr. O’Brien to
comment upon this evidence. (Tr. 891.)
In response to the ALJ’s interrogatory, Dr. O’Brien noted plaintiff’s
admission to abusing marijuana and of the NP’s warning that the use of such
substance interferes with the effectiveness of his medications. Dr. O’Brien opined
that “[i]n the absence of substance abuse and full cooperation with ongoing
treatment recommendations,” plaintiff would have mild difficulties in activities of
daily living; moderate difficulties in social functioning; moderate difficulties in
concentration, persistence, and/or pace; with no episodes of decompensation. With
the presence of substance abuse, Dr. O’Brien opined that plaintiff had moderate
difficulties in activities of daily living; marked difficulties in social functioning and
in maintaining concentration, persistence, and/or pace; and would be expected to
have future episodes of decompensation given that substance abuse interferes with
the effectiveness of medication. (Tr. 893-94.)
V. The ALJ's Decisions
In his decision entered September 7, 2012, the ALJ summarized the
evidence of record that was before him at that time – including education records,
medical treatment records, and consulting records – made findings thereon, and
determined plaintiff to have the RFC to perform a full range of work at all
exertional levels but was restricted to simple, repetitive tasks and instructions
- 32 -

involving only occasional interaction with co-workers, supervisors, and the general
public. Considering plaintiff’s age, education, work experience, and RFC, the ALJ
determined that plaintiff could perform work as it exists in significant numbers in
the national economy, as testified to by the vocational expert. (Tr. 28-38.)
In his decision entered September 27, 2012, the ALJ supplemented his
previous decision by addressing the additional medical evidence of record as well
as Dr. O’Brien’s medical expert opinion regarding such additional evidence. The
ALJ concluded that plaintiff’s mood disorder with substance induced paranoia and
cannabis abuse were severe impairments, but that such impairments, either singly
or in combination, did not meet or medically equal an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found plaintiff to have the RFC
to perform the full range of work at all exertional levels but was restricted to
simple, repetitive and routine work with only occasional interaction with coworkers, supervisors, and the public. The ALJ found plaintiff to have no past
relevant work. Considering plaintiff’s age, education, work experience, and RFC,
the ALJ found vocational expert testimony to support a finding that plaintiff could
perform work as it exists in significant numbers in the national economy, and
specifically, manufacturing helper, laundry worker, and machine feeder. The ALJ
thus found plaintiff not to be under a disability since April 23, 2010. (Tr. 14-19.)
The ALJ’s decision of September 27 does not repeat the summary of
- 33 -

evidence recited in the September 7 decision. Nor does it vacate the September 7
decision as to any findings on the record. Accordingly, the undersigned will
review the ALJ’s recitation of evidence in both decisions in determining whether
the ALJ’s final decision of September 27 is supported by substantial evidence on
the record as a whole.
VI. Discussion
A claimant is not eligible for SSI benefits for any month throughout which
he is a resident of a public institution, such as a prison. Cook v. Astrue, 629 F.
Supp. 2d 925, 929 n.3 (W.D. Mo. 2009) (citing 20 C.F.R. § 416.211). Such a
claimant is not considered eligible for receipt of SSI benefits until the first day of
the month following the day of his release. 20 C.F.R. § 416.211(a)(1).
To be eligible for SSI under the Social Security Act, plaintiff must prove
that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001);
Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
The Social Security Act defines disability as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. § 1382c(a)(3)(A). An individual will be declared disabled "only if his
physical or mental impairment or impairments are of such severity that he is not
- 34 -

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. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987). The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity. If the claimant is working, disability
benefits are denied. Next, the Commissioner decides whether the claimant has a
“severe” impairment or combination of impairments, meaning that which
significantly limits his ability to do basic work activities. If the claimant's
impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
- 35 -

substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff's
impairments.

6.

The testimony of vocational experts when required which is
- 36 -

based upon a proper hypothetical question which sets forth the
claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also
have supported an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252
(8th Cir. 1992) (internal quotation marks and citation omitted); see also Jones ex
rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
In this action for judicial review, plaintiff raises numerous claims that the
ALJ erred in the manner and method by which he determined plaintiff not to be
disabled. The undersigned addresses each claim in turn.
A.

Listings of Mental Disorders
Plaintiff claims that he experiences severe limitations in activities of daily

living and in social functioning, and is markedly limited in his ability to maintain
- 37 -

concentration, persistence, or pace. Plaintiff also contends that he cannot function
in a work setting with his chronic anger issues that cause him to be homicidal at
times. In light of these functional restrictions, which plaintiff argues persist even
with medication, plaintiff contends that he meets the relevant criteria of a listed
mental impairment under § 12.00 of the Listings and that the ALJ erred by failing
to so find. For the following reasons, the ALJ did not err.
Section 12.00 of the Listings of Impairments governs the evaluation of
disability on the basis of mental disorders. As noted by the Commissioner,
plaintiff does not identify which specific listing under § 12.00 he purports to meet.
Nevertheless, all listed mental impairments under § 12.00 – other than § 12.05 for
mental retardation and the physical effects of § 12.09 substance abuse disorders –
require a claimant to show that his mental impairment meets “paragraph B”
criteria, that is, that it results in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
A marked limitation “means more than moderate but less than extreme.” §
12.00(C). “A marked limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree of limitation is
such as to interfere seriously with your ability to function independently,
- 38 -

appropriately, effectively, and on a sustained basis.” Id.
In his written decisions here, the ALJ found plaintiff not to have any marked
limitations, but instead to have mild restrictions in activities of daily living;
moderate difficulties in social functioning; moderate difficulties in concentration,
persistence, or pace; and to have had no episodes of decompensation of an
extended duration. (Tr. 15, 31.) Substantial evidence on the record as a whole
supports the ALJ’s findings that plaintiff’s limitations in all domains are less than
marked.
With respect to activities of daily living, § 12.00 directs the Commissioner
to consider adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for
grooming and hygiene, using telephones and directories, and using a post office. §
12.00(C)(1). Finding plaintiff to have mild restrictions in this domain, the ALJ
specifically noted that plaintiff is capable of most self-care tasks (Tr. 15) and is
able to live alone, clean his house, volunteer, prepare meals, perform small
household repairs, shop, handle his finances, engage in crafts, and go to church
(Tr. 31). Substantial evidence on the record as a whole supports these findings.
Although plaintiff contends that his daily activities are restricted by his mistrust of
people, chronic fear, and suicide attempts, the record nevertheless shows that,
while limited, plaintiff does not experience limitations to such degree as to
- 39 -

interfere seriously with his ability to function independently, appropriately,
effectively, and on a sustained basis, as demonstrated by his activities described
above and set out in the record. Indeed, the record shows plaintiff not to suffer the
claimed limiting effects of his mental impairment when he takes and is compliant
with psychotropic medication. See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.
2004) (impairment cannot be considered disabling if it can be controlled by
treatment or medication). The ALJ did not err in finding plaintiff’s limitations in
his activities of daily living to be less than marked.
With respect to social functioning, § 12.00 directs the Commissioner to
consider the claimant’s capacity to interact with and get along with others, such as
family members, friends, neighbors, grocery clerks, landlords, or bus drivers. The
capacity for such interaction may be exhibited by a history of altercations, firings,
or social isolation as well as evidence of initiating social contact, participating in
group activities, or communicating clearly with others. § 12.00(C)(2). Here, the
ALJ found plaintiff to be moderately limited in this domain, specifically noting
that plaintiff’s occasional paranoia and anger issues affect his ability to get along
with others (Tr. 15) but that he nevertheless is able to engage in volunteer work,
attend church, go to the mall, shop at stores, and spend time with friends (Tr. 31).
The ALJ also noted that plaintiff perceived his inability to get along with people to
be the result of others’ opinions regarding his criminal history rather than as a
- 40 -

limiting effect caused by his mental impairment. (Tr. 31.) The record also shows
that plaintiff’s ability to engage in some social activities, such as attending church
and performing volunteer work, is limited by his lack of transportation rather than
the effects of his mental impairment. Although plaintiff contends that his social
functioning is restricted by his mistrust of people, thoughts of hurting others, and
sexual fantasies, the record shows these conditions to be abated with medication
and treatment. See Brown, 390 F.3d at 540. Indeed, at no time since August 2011
did plaintiff exhibit or express any threat to himself or others, and his mental health
providers perceived him to be no threat. As such, while the record shows plaintiff
to experience limitations in social functioning, the ALJ did not err in finding them
not to rise to the level of marked limitations. Although not all the evidence
“pointed in that direction,” there nevertheless was a sufficient amount that did. See
Moad v. Massanari, 260 F.3d 887, 891 (8th Cir. 2001).
With respect to concentration, persistence, or pace, the Commissioner must
consider the claimant’s ability to sustain focused attention and concentration
sufficiently long to permit the timely and appropriate completion of tasks
commonly found in work settings. § 12.00(C)(3). In this domain, the ALJ
determined plaintiff to have moderate difficulties, specifically noting plaintiff’s
anger and anxiety to affect his ability to concentrate and persist with tasks (Tr. 15)
but that he nevertheless engages in activities suggestive of good functioning in this
- 41 -

area, such as volunteering, performing basic household repairs, shopping and
comparing prices, handling his own finances, following instructions, and meeting
his registration requirements with no reported difficulties (Tr. 31). Substantial
evidence on the record as a whole supports these findings. Although plaintiff
contends that he is restricted in this domain by his racing thoughts, anxiety, and
low range of intellectual functioning, the record nevertheless shows that, even
during periods of exacerbation, plaintiff demonstrated normal concentration and
memory and was goal directed in his thoughts. Although plaintiff’s concentration
was noted to be poor in June 2012 during examination at the clinic, NP Collins
also noted that plaintiff appeared to be deceptive during this exam. There are no
other instances of limited concentration or memory in the record. The ALJ did not
err in finding plaintiff’s limitations in concentration, persistence, or pace to be less
than marked.
To the extent plaintiff claims that he experiences episodes of
decompensation, the record shows that any exacerbation of plaintiff’s symptoms
did not meet the durational requirement of the Listings, see § 12.00(C)(4); and,
further, that such exacerbations occurred during periods when plaintiff was not
taking and/or was not compliant with psychotropic medications. Brown, 390 F.3d
at 540.
Finally, plaintiff contends that he continues to experience functional
- 42 -

limitations despite his medication regimen and that his medication causes adverse
side effects, which must be considered under § 12.00(G). However, as noted by
the ALJ, plaintiff’s limited treatment subsequent to his release from prison shows
that medication appeared to stabilize plaintiff’s symptoms when he was compliant;
and, further, even without consistent medication management, plaintiff exhibited
many normal behaviors during mental status examinations, including examinations
by Dr. Lanpher and Ms. Tarkington. To the extent plaintiff exhibited remarkable
signs and symptoms during other examinations, the record shows such
exacerbations to have occurred in relation to situational stressors and to have
abated with medication. See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010)
(ALJ did not err in finding claimant’s depression not to be severe inasmuch as it
was situational in nature, related to marital issues, and improved with medication
and counseling).
With respect to plaintiff’s claim that he experiences sleepiness and
grogginess as a side effect of Doxepin, the undersigned notes that plaintiff never
complained to any provider that he experienced side effects from any medication
and, indeed, reported the contrary in July 2012. As such, to the extent plaintiff
claims that consideration of his continued functional limitations and medication
side effects pursuant to § 12.00(G) supports a finding that his mental impairment
meets a listed impairment under § 12.00, the claim fails.
- 43 -

B.

Consideration of Learning Disorder and GAF Scores
Plaintiff claims that the ALJ failed to properly consider his learning disorder

and low GAF scores in determining his mental impairment not to be disabling. For
the following reasons, plaintiff’s argument is misplaced.
As an initial matter, the undersigned notes that the ALJ specifically
addressed plaintiff’s educational history and related opinions by educators that he
had a learning disorder. The ALJ also noted Dr. Rohatgi’s diagnosis in 1994 that
plaintiff had a developmental disorder affecting arithmetic, reading, and language.
(Tr. 34.) The mere existence of an impairment, however, is not disabling per se;
there must be a functional loss establishing an inability to engage in substantial
gainful activity before disability occurs. Trenary v. Bowen, 898 F.2d 1361, 1364
(8th Cir. 1990). Remote evidence of the existence of an impairment is insufficient
alone to establish that a claimant currently experiences functional limitations that
diminish his capacity to perform work-related activities. See Brockman v.
Sullivan, 987 F.2d 1344, 1348 (8th Cir. 1993).
A review of the record in toto shows that during the period relevant to
disability, treating and consulting providers opined that plaintiff possessed low
average to borderline intellectual functioning.9 While the ALJ did not specifically
9

While the ALJ discussed the evidence obtained from these providers, he did not specifically
address their findings as to plaintiff’s intellectual functioning. This failure to cite to these
specific findings does not mean that the ALJ did not consider them. Montgomery v. Chater, 69
- 44 -

find plaintiff’s level of intellectual functioning to be an impairment, he included in
the RFC determination a finding that plaintiff was limited to the performance of
simple, repetitive, and routine work. Such a limitation adequately accounts for
plaintiff’s level of intellectual functioning. See Howard v. Massanari, 255 F.3d
577, 582 (8th Cir. 2001).
To the extent plaintiff argues that the ALJ failed to evaluate plaintiff’s GAF
scores, a review of the ALJ’s decisions belies this contention. (See Tr. 16-17, 3536.) Nevertheless, as noted by the Commissioner, the GAF scale has not been
endorsed for “use in the Social Security and SSI disability programs” and “does
not have a direct correlation to the severity requirements in [the] mental disorders
listings.” 65 FR 50746-01, 50764, 2000 WL 1173632 (Soc. Sec. Admin. Aug. 21,
2000); see also Halverson v. Astrue, 600 F.3d 922, 930-31 (8th Cir. 2010). As
such, an ALJ is not bound by GAF scores assigned by a claimant’s provider in
determining the effects of the claimant’s mental impairment; instead, the ALJ must
review the record as a whole. Halverson, 600 F.3d at 931. This is what the ALJ
did here.
C.

Consideration of Drug Use in Credibility Determination
In his written decisions, the ALJ found plaintiff’s subjective complaints not

F.3d 273, 275 (8th Cir. 1995) (ALJ's failure to cite specific evidence does not indicate that such
evidence was not considered).
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to be entirely credible due, in part, to his statements in the record denying any
substance abuse when objective testing showed otherwise. (Tr. 16, 33.) Plaintiff
claims that the ALJ’s accusation that he used drugs was an improper basis upon
which to discredit his subjective complaints inasmuch as “[t]here is no indication
in this file the Plaintiff ever tested positive for drugs.” (Pltf.’s Brief, Doc. #14 at p.
18.) Because the record clearly shows that blood tests yielded positive results for
the presence of cannabinoids (Tr. 781, 873-74), plaintiff’s claim that “[t]here is no
proof whatsoever that [he] is using drugs” is without merit.
D.

Closed Period of Disability
Plaintiff claims that the ALJ legally erred by failing to consider whether he

was entitled to a closed period of disability, arguing the record to show that he has
not yet mentally adjusted to life outside of prison but may at some point in the
future be able to perform substantial gainful activity.
As noted by the Eighth Circuit, disability is not an “all-or-nothing”
proposition. A claimant may be eligible to receive benefits for a specific period of
time. Harris v. Secretary of Dep’t of Health & Human Servs., 959 F.2d 723, 724
(8th Cir. 1992); Atkinson v. Bowen, 864 F.2d 67, 71 (8th Cir. 1988). “However,
even within a closed period, a claimant must still meet the definition of
disability[.]” Devary v. Colvin, ___ F. Supp. 2d ___, No. C13-3035-LTS, 2014
WL 1089164, at *6 (N.D. Iowa Mar. 19, 2014). Because the ALJ properly
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determined plaintiff not to be disabled at any time during the relevant period, he
did not err in failing to consider a closed period of disability. See Clark v. Bowen,
864 F.2d 66 (8th Cir. 1988) (per curiam).
Throughout his incarceration, plaintiff received mental health treatment
through counseling and/or medication management. The record shows that
plaintiff did not exhibit abnormal behaviors during such treatment and that any
exacerbations of symptoms were situational in nature and ameliorated with an
adjustment to treatment. Beginning in October 2009, plaintiff refused medication
and counseling. Notably, however, plaintiff reported no complaints after October
2009, and mental status examination in March 2010 yielded normal results.
Plaintiff was released from prison in April 2010 and, as noted by the ALJ, sought
no treatment until July 2011. Plaintiff began receiving treatment through
counseling and medication in July and August 2011, with exacerbations of
symptoms noted to be related to relationship stressors. Even during these periods
of exacerbation, Dr. Lake determined plaintiff to be “low risk” and stable for
outpatient treatment instead of requiring hospitalization. Thereafter, plaintiff
received no treatment or evaluation until February 2012 at which time plaintiff
exhibited symptoms consistent with mood disorder and anxiety disorder; but, as
noted by Dr. Lanpher, plaintiff had not taken medication for his condition since
January, when the medication ran out. Plaintiff’s condition was noted to improve
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with a resumption of counseling and medication management beginning in May
2012.
As demonstrated above, the record shows plaintiff not to have met the
definition of disability at any time during the relevant period and thus not eligible
for consideration of a closed period of disability. Upon plaintiff’s release from
prison, he exhibited no symptoms and reported no complaints rising to the level of
a disabling mental impairment. From April 2010 to July 2011, there exists no
medical evidence upon which the ALJ could find plaintiff’s mental impairment
severe enough to affect his ability to work. 20 C.F.R. § 416.908 (disabling
impairment must be established by medical evidence). Cf. Benskin v. Bowen, 830
F.2d 878, 884 (8th Cir. 1987) (claimant’s failure to seek medical treatment
inconsistent with complaints of disabling impairment). Even if plaintiff was given
the benefit of the doubt and found to be unable to engage in substantial gainful
activity as of July 2011, plaintiff nevertheless could not meet the twelve-month
durational requirement for disability inasmuch as treatment beginning in May 2012
improved plaintiff’s condition, including objective improvement in overall mental
status. See Brown, 390 F.3d at 540 (impairment controlled by medication not
disabling); Van Winters v. Colvin, No. 1:12-CV-71-SPM, 2013 WL 4402971, at *8
(E.D. Mo. Aug. 14, 2013) (disabling condition must last for twelve months during
closed period). See also Bauerly v. Colvin, No. C13-4048-MWB, 2014 WL
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980807, at *6 (N.D. Iowa Mar. 11, 2014).
Accordingly, because plaintiff did not meet the definition of disability at any
time during the relevant period, the ALJ did not err in failing to consider whether
plaintiff was eligible for a closed period of disability.
E.

RFC Limitation in Social Contact
Plaintiff claims that the ALJ’s RFC determination failed to account for his

inability to work in close proximity to co-workers and supervisors given his
paranoia, antisocial personality disorder, and poor judgment and insight.
Plaintiff’s claim is without merit.
In his RFC determination, the ALJ restricted plaintiff to only occasional
interaction with supervisors, co-workers, and the general public.10 The vocational
expert testified that a person with such a limitation could perform the jobs of
manufacturing helper, laundry worker, and machine feeder. As defined in the
Dictionary of Occupational Titles (DOT), these jobs do not require significant
contact with other people and are rated at a Level 8 for amount of interaction. See
DOT #809.687-014 (manufacturing helper); DOT #361.685-018 (laundry worker)
DOT #699.686-010 (machine feeder). Level 8 interaction requires: “Taking
Instructions–Helping: Attending to the work assignment instructions or orders of
10

To engage in an activity “occasionally” means less than frequent in that the activity or
condition exists up to one-third of the time. See Owens v. Colvin, 727 F.3d 850, 851-82 (8th Cir.
2013) (as defined by the DOT, used by the Regulations as a resource for determining duties of
work).
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supervisor. (No immediate response required unless clarification of instructions or
orders is needed.) Helping applies to ‘non-learning’ helpers.” DOT, Appendix B,
1991 WL 688701. Level 8 interaction is compatible with an RFC limiting a
claimant to only superficial contact with co-workers, supervisors, and the public.
See, e.g., Flaherty v. Halter, 182 F. Supp. 2d 824, 850-51 (D. Minn. 2001);
Goforth v. Colvin, No. 13-cv-274-TLW, 2014 WL 1364992, at **5-6 (N.D. Okla.
Apr. 6, 2014) (DOT Level 8 interaction is consistent with superficial contact with
supervisors and co-workers, and no contact with general public). See also
Arsenault v. Astrue, No. 08-269-P-H, 2009 WL 982225, at *3 (D. Me. 2009)
(citing cases) (level of interaction denoted as “not significant” in DOT compatible
with limitation to no significant or no more than occasional interaction with public,
co-workers, and supervisors). It cannot be said therefore, that the ALJ’s RFC
limitation restricting plaintiff to only occasional contact with supervisors and coworkers in jobs involving Level 8 interaction as defined by the DOT would require
plaintiff to work “in close proximity” to such persons.
Plaintiff’s claim that the ALJ’s RFC determination failed to account for his
limited social contact therefore fails.
F.

Vocational Expert Testimony
Finally, plaintiff argues that the ALJ erred by failing to elicit testimony from

the vocational expert at the second hearing. Plaintiff contends that it was error for
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the ALJ to rely on vocational expert testimony that was elicited at the first hearing,
when plaintiff was not represented by counsel.
As an initial matter, the undersigned notes that a vocational expert was
present at the second hearing when counsel was likewise present for plaintiff. The
ALJ announced on the record that he intended not to obtain testimony from the
vocational expert, indicating that the vocational expert’s testimony from the
previous hearing continued to be applicable. Counsel did not object to the ALJ’s
decision to not question the vocational expert. Nor did counsel request permission
to question the vocational expert, despite the ALJ’s query to counsel as to whether
he wished to proceed further. In these circumstances, it cannot be said that
plaintiff was deprived of the opportunity to develop the record as to vocational
expert testimony. Cf. Richardson v. Perales, 402 U.S. at 409-10.
Notably, in his claim here, plaintiff does not identify or elaborate upon any
limitations he claims should have been posed to the vocational expert at the second
hearing that were not included in the hypothetical question posed at the first
hearing. Cf. Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008) (claimant did not
identify what limitations were missing from the hypothetical). With nothing more,
plaintiff’s blanket claim that the ALJ should not have relied on vocational expert
testimony obtained without counsel for plaintiff does not provide a basis for relief
in the circumstances of this case.
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To the extent plaintiff argues that the ALJ also improperly relied on the
opinion of the medical expert regarding the effects of plaintiff’s drug use given that
“[t]here is absolutely no proof that Plaintiff is using drugs” (Pltf.’s Brief, Doc. #14
at p. 20), this claim fails for the reasons discussed supra at Section VI.C.
VII. Conclusion
For the reasons set out above on the claims raised by plaintiff on this appeal,
the ALJ’s determination that plaintiff was not disabled from April 23, 2010, is
supported by substantial evidence on the record as a whole, and plaintiff’s claims
of error are denied.
Therefore,
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 16th day of October, 2014.

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

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