Johnson v. Colvin

Filing 26

MEMORANDUM AND ORDER re: 25 SOCIAL SECURITY CROSS BRIEF re 20 SOCIAL SECURITY BRIEF re 1 Complaint (Social Security), filed by Defendant Carolyn W. Colvin, 20 SOCIAL SECURITY BRIEF re 1 Complaint (Social Security), filed by Plaintif f Keisha Latrice Johnson. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the final decision of the Commissioner denying social security benefits be AFFIRMED. Judgment shall be entered accordingly. Signed by Magistrate Judge Terry I. Adelman on 1/20/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

KEISHA LATRICE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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No. 1:14CV28 TIA

MEMORANDUM AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This cause is on appeal from an adverse ruling of the Social Security Administration. The
suit involves Applications for Disability Insurance Benefits under Title II of the Social Security
Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief
in Support of her Complaint, and the Commissioner has filed a Brief in Support of her Answer.
The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I.

Procedural History
On February 1, 2011, Claimant Keisha Latrice Johnson filed Applications for Disability

Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 171-77) and for
Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42
U.S.C. §§ 1381, et. seq. (Tr. 165-70).1 Claimant states that her disability began on October 1,
2010,2 as a result of depression, inability to focus, anxiety, and back problems. (Tr. 70, 87, 208).
1

"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(Docket No. 12/filed May 16, 2014).
2

Although Claimant originally alleged an onset date of February 15, 2010 in her applications,
at the hearing, she amended her onset date to June 30, 2011. (Tr. 16, 36,184).

On initial consideration, the Social Security Administration denied Claimant's claims for benefits.
(Tr. 87-91). Claimant requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 9293). On November 7, 2012, a hearing was held before an ALJ. (Tr. 41-69, 122-40). Claimant
testified and was represented by counsel. (Id.). Vocational Expert Dr. Chrisann Schiro-Geist also
testified at the hearing. (Tr. 64-67). Thereafter, on March 4, 2013, the ALJ issued a decision
denying Claimant’s claims for benefits. (Tr. 8-19). After considering the treatment notes from
Missouri Southern Healthcare and Bootheel Counseling Services, the Appeals Council found no
basis for changing the ALJ’s decision on February 10, 2014. (Tr. 1-6). The ALJ's determination
thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
II.

Evidence Before the ALJ
A. Hearing on November 7, 2012
1. Claimant's Testimony
At the hearing on November 7, 2012, Claimant testified in response to questions posed

by the ALJ and counsel. (Tr. 44-63). At the time of the hearing, Claimant was twenty-eight
years of age, and her date of birth is August 9, 1984. (Tr. 44). She is right-handed. Claimant
lives in an apartment with her fifteen-month old daughter. (Tr. 45). Her daughter weighs twentyfive pounds. (Tr. 49). She completed the ninth grade. (Tr. 45).
Claimant testified that she could no longer work as of October 1, 2010, because she wants
to sleep all day and does not want to go outside. (Tr. 46). She testified that a counselor in New
Madrid treats her, but she has to wait until the office calls her back so the counselor can start
treating her again. (Tr. 46). She takes medications for depression, anxiety, blood pressure, and
arthritis prescribed by Dr. Domjan and Dr. Tracy. (Tr. 47). She has arthritis in her lower back,
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and the medicine does not help. (Tr. 48). All of her medications taken together calms her down.
(Tr. 49).
Claimant does her own laundry and cooking. (Tr. 49). Her mother helps her with the
grocery shopping. (Tr. 50). She cannot stand for a long period of time. (Tr. 50). Two weeks
earlier, she started to wear a brace provided by pain management. (Tr. 51). Two months earlier,
she received a shot as treatment. (Tr. 52). Her mother visits twice a week and helps care for her
daughter. (Tr. 55).
Claimant testified that she last worked at a job for her mother, because everywhere else
she worked she was fired. (Tr. 55). As a participant in the Home Health Service program, her
mother selects someone to provide home care, and Claimant works eleven hours a week helping
her mother clean her house. (Tr. 61-62). Before working for her mother, she worked at a
nursing home, but she was fired for being too slow and clumsy. (Tr. 57). Before that job, she
worked at another nursing home but was fired. Claimant explained how she never works long
before she is fired. (Tr. 57). Her duties included lifting, feeding, and bathing residents. (Tr. 58).
Close to Home terminated her in 2010 for sleeping on the job. (Tr. 59). Claimant testified she
would not be able to work every day because of her depression and pain. (Tr. 63).
2. Testimony of Vocational Expert
Vocational Expert Dr. Chrisann Schiro-Geist testified in response to the ALJ’s questions.
(Tr. 64-67). The ALJ asked Dr. Schiro-Geist to assume Claimant has no past relevant work. (Tr.
65).
The ALJ asked Dr. Schiro-Geist to assume
a hypothetical individual of Ms. Johnson’s age, education and work experience and
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assume that person would be limited to lifting 20 pounds on occasion and ten
pounds frequently; could stand and/or walk at least six hours out of an eight-hour
workday and could sit at least six. And also that the person would be limited to
simple and/or repetitive work that didn’t require close interaction with the public
or coworkers. And that had few, if any, changes in work settings, work processes
and work locations. With those restrictions would there be jobs that could be
performed?
(Tr. 65). Dr. Schiro-Geist responded yes, based on the hypothetical, such individual could
perform jobs at the light exertional level such as assembly line work with 47,068 jobs regionally
and 2,350,000 available nationally, and hand packing with 14,734 jobs regionally and 735,000
available nationally. (Tr. 65-66). Dr. Schiro-Geist responded no his answer would not change if
the ALJ added to the hypothetical the individual could only occasionally stoop and crouch. (Tr.
66). Dr. Schiro-Geist indicated her response would not change if the ALJ restricted the
individual to avoid climbing ladders, ropes and scaffolds and working at unprotected, dangerous
height and around unprotected, dangerous machinery. (Tr. 66).
Next, the ALJ asked Dr. Schiro-Geist to assume
the person would be limited to sedentary work and would be a maximum lift of ten
pounds and a maximum stand and/or walk of about two hours. And assume all the
other restrictions, including the postural and climbing and working at heights.
Would there be sedentary jobs that could [be] performed within those restrictions?
(Tr. 66). Dr. Schiro-Geist Ms. Bose responded the number of jobs available would drop. (Tr.
66).
The ALJ asked Dr. Schiro-Geist to assume for some medical reason, the individual would
consistently miss more than two days a month at the jobs described, would that preclude
competitive employment in those jobs after a brief period? (Tr. 67). Dr. Schiro-Geist responded
yes. When asked if competitive employment would be precluded in the jobs described if the

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individual had to appear late or leave work early or step away from the work setting the
equivalent of an additional break time, randomly and never predictably during the week but at
least once a week for some medical reason, Dr. Schiro-Geist opined competitive employment
would be precluded. (Tr. 67).
3. Forms Completed by Claimant
In the Disability Report - Adult, Claimant reported she stopped working on October 1,
2010 because of her condition(s) and other reasons, she was fired. (Tr. 208).
In the Disability Report - Field Office dated February 1, 2011, the interviewer noted:
Throughout the entire phone interview, the claimant took about 15 to 20 seconds
(and sometimes longer) to begin to answer the question. Sometimes she wouldn’t
speak or answer at all until I had repeated the question c couple of times, and even
then it took some prompting to get her to at least give an answer of some kind.
During the last 15 minutes of the lengthy phone interview, the claimant was eating
potato chips and would answer between mouthfuls (after the standard pause of 15
to 20 seconds, of course).
(Tr. 194).
III.

Medical Records and Other Records
To obtain disability insurance benefits, Claimant must establish that she was disabled

within the meaning of the Social Security Act not later than the date her insured status expired December 31, 2015. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) (“In order to receive
disability insurance benefits, an applicant must establish that she was disabled before the
expiration of her insured status.”); see also 42 U.S.C. §§ 416(I) and 423(c); 20 C.F.R. § 404.131.
The admitting doctor, Dr. John Wilkaitis, diagnosed Claimant with depression. (Tr. 243).
Claimant was admitted on June 7, 2006 on a voluntary basis due to having suicidal ideations on
referral by Delta Medical Center. (Tr. 244). She reported a combination of depression and stress
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have caused her suicidal ideations. She has problems with an abusive ex-boyfriend, and she has an
ex parte order against him. On the date of admission, he caused her to be terminated from her
job. She has not been treated by a psychiatrist or a therapist. (Tr. 244, 250). She has been in a
relationship since the age of thirteen with a person who has been physically and mentally abusive.
(Tr. 245). She reported not having any support or family close to her and an abusive mother.
(Tr. 249). Claimant reported fracturing her spine in an automobile accident and being treated
with analgesics. (Tr. 251). In the assessment, it is noted “Positive urine drug screen noted.” (Tr.
255).
Dr. Wilkaitis noted Claimant has a fair amount of legal issues including two years earlier,
she had been arrested for possession of crack cocaine, and she spend eight months in the county
jail. One month earlier, she pawned a computer that had been stolen from the police department
and was tracked back to her. Claimant last worked at White’s and Associates, but she was
terminated because of her boyfriend’s telephone call to her employer, and her employer found out
about the issue of the stolen computer. (Tr. 245, 250). She reported having a daily marijuana
habit until two months earlier. (Tr. 246). She has been clean for two months and has been in
treatment at Family Counseling Center on an outpatient basis and has been in drug class for
marijuana previously. (Tr. 246). Claimant is on probation for possession of an illicit substance
with over two years to be served. (Tr. 250). She smokes one package of cigarettes a day. (Tr.
250). Claimant reported leaving school after the tenth grade because of her boyfriend. (Tr. 246).
One of her step dads was physically abusive. (Tr. 247).
Dr. Leanne Duncan noted in the mental status Claimant to be oriented to place, person
and situation. Claimant denied having any auditory or visual hallucinations. Her affect is
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congruent with her mood alright. (Tr. 247). Adjustment disorder was listed in the diagnostic
formulation. (Tr. 248). She has moderate stressors including legal, primary support, financial,
lack of support system, and unemployment. (Tr. 248-49). Dr. Duncan noted that her medications
would be adjusted , and she would participate in individual and group psychotherapy. (Tr. 248).
In the discharge summary, it is noted that Claimant withdrew without advice. (Tr. 243).
On March 10, 2011, Dr. Ben Lanpher, a licensed psychologist, completed a psychological
evaluation on referral by Disability Determinations for the purpose of assessing Claimant’s ability
to engage in work-related activities. (Tr. 288). Dr. Lanpher noted she is alleging back problems,
“inability to focus,” depression, and anxiety as her basis of disability. Her current medications
include only prenatal vitamins. She reported seeing ghosts, and having back problems associated
with a car accident, but she could not give a time frame from the accident. Although she claims
she broke her back, she reported no history of surgery and being four months pregnant. Claimant
reported taking only prenatal vitamins and having been prescribed antidepressant medications in
the past. (Tr. 288). With respect to employment, she reported having worked in nursing homes
but she was told she was too slow. (Tr. 289). For activities of daily living, she indicated that she
lives alone, receives food stamps, and watches movies over and over again. Dr. Lanpher observed
Claimant’s hygiene and dress to be appropriate, her emotions to be depressed, and her affect
labile. (Tr. 289). During the mental status examination, Dr. Lanpher found her level of effort to
be questionable. (Tr. 290). Dr. Lanpher found Claimant to be functioning within borderline
range of intellectual ability and exhibiting symptoms characteristic of severe depression. Dr.
Lanpher noted he does not have any past medical records and found Claimant to be a “poor
historian, volunteering little information.” (Tr. 290). Dr. Lanpher found Claimant to be
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moderately to markedly impaired in her ability to understand and remember instructions and
sustain concentration; she is markedly impaired in her ability to interact socially; and she is
markedly impaired in her ability to adapt to her environment and persist in tasks. (Tr. 290).
In the April 28, 2011 Psychiatric Review Technique, Dr. Joan Singer found a RFC
assessment to be necessary and found Claimant to have a major depressive disorder, recurrent and
severe. (Tr. 291-98). Dr. Singer found Claimant to have moderate functional limitations in
activities of daily living, maintaining social functioning, and maintaining concentration,
persistence, or pace. (Tr. 299). In the Mental Residual Functional Capacity Assessment, Dr.
Singer found Claimant to be moderately limited in her ability to understand and remember detailed
instructions and in her ability to maintain attention and concentration for extended periods, to
sustain an ordinary routine, and to work in coordination others. (Tr. 302). With respect to
interact appropriately with the general public, Dr. Singer found her to be moderately limited. (Tr.
303). Dr. Singer further found her to be moderately limited in her ability to respond appropriately
to changes in the work setting. (Tr. 303). In support, Dr. Singer noted how Claimant has no
recent medical treatment for mental impairment, and she has reported living alone and having no
problems with personal care and being able to cook, do the laundry, dishes, and other house
chores. Dr. Singer opined as follows:
the claimant’s allegations are not fully credible based partly on the inconsistency
between claimant’s and her mother’s statements regarding claimant’s functioning.
The lack of any current/recent treatment in the context of such severe allegations is
also suspect especially when claimant has sought treatment for other complaints in
the past. Claimant scored only 17 out of 30 on the Mini Mental Status but her
level of effort was questionable. The claimant was guarded as she volunteered
little information during the interview and was very slow to respond to questions.
The MSOs given by the CE psychologist are given little weight as they are based
solely on claimant’s self-report. The claimant may have a significant untreated
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mental impairment but the evidence does not support the degree of severity
alleged. The claimant is capable of at least simple, repetitive work away from the
public.
(Tr. 304).
On May 2, 2012, Claimant reported back pain during treatment by Karen Tracy, FNP.
(Tr. 314). Examination showed tenderness upon palpitation. (Tr. 315). Ms. Tracy noted her
mood to be euthymic. (Tr. 315). She returned for a medication refill on May 9 and reported
feeling anxious and overwhelmed. (Tr. 323-24). Ms. Tracy found Claimant to have seasonal
pattern depression and noted she would start a medication for depression, and she would see a
counselor for evaluation. (Tr. 325). Examination of her lumbar spine on May 21 showed
tenderness of lumbar and thoracolumbar spine on palpitation. (Tr. 322).
The May 11, 2012 x-ray of her thoracic spine showed no compression and minimal
scoliosis. (Tr. 306). The x-ray of her cervical spine revealed mild straightening of the normal
lordotic curve suggesting possible muscle spasm. (Tr. 307). The x-ray of her lumbar spine
showed lumbar scoliosis. (Tr. 309).
On June 7, 2012, Claimant had an evaluation for management of mutltifocal pain. (Tr.
330). The doctor noted Claimant to be oriented to time, place, person and situation and to have
normal association and judgment. (Tr. 342). The doctor observed Claimant to have normal
mental status. The doctor advised her to avoid cigarette smoke and continue with the home
exercise program as tolerated. (Tr. 342). Musculoskeletal examination showed tenderness. (Tr.
343). She reported having problems sleeping and being anxious and feeling sad. (Tr. 344). She
reported smoking an average of two packages of cigarettes a day. (Tr. 346). On June 21,
Claimant returned for a medication follow-up as treatment of her cervical spondylosis and
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lumbosacral spondylosis. (Tr. 328). The doctor noted urine drug screening medical necessity.
(Tr. 329). In the activities of daily living, Claimant reported improvement in physical functioning,
family relationship, social relationship, mood, and overall functioning. (Tr. 329).
The July 9, 2012 MRI showed a minimal disc bulge at the L2-3 level that mildly narrows
the inferiors recesses of the neural foraminal along with a minor left facet arthropathy with a tiny
cynovial cyst along the posterior inferior margin of the left facet joint. (Tr. 326). The MRI
further showed minimal disc bulge that produced minor narrowing of the inferior recesses of the
neural foramina at the L3-4 level, and a minor disc bulge that narrows the inferior recesses of the
neural foramina with mild bilateral facet arthropathy that is present which was in conjunction with
the short the short pedicles produces mild bilateral neural foraminal stenosis at the L4-5 level.
(Tr. 326-27).
On August 20, 2012, Dr. Daniel Domjan treated Claimant’s chronic pain. (Tr. 318). Dr.
Domjan noted her anxiety disorder to be inadequately controlled and her mood to be depressed.
(Tr. 319). Dr. Domjan discussed his concerns about her tobacco use. (Tr. 320).
In follow-up treatment on October 15, she reported having low back pain and anxiety.
(Tr. 316). Dr. Domjan noted her mood to be depressed. (Tr. 317). Dr. Domjan continued her
medication regimen and referred to cardiology for chest pain and counseled on cessation of
tobacco use. (Tr. 317).
In follow-up treatment for chronic pain on November 5, 2012, Claimant reported having
neck and back pain. (Tr. 373). Musculoskeletal examination showed tenderness. (Tr. 375). She
requested an increased dosage of her pain medications. (Tr. 377). On November 5, she received
a verbal warning for an inconsistent low drug urine test. (Tr. 377). In follow-up treatment of
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December 3, she reported neck pain. (Tr. 368). On December 5, she received a lumbar epidural
injection as treatment. (Tr. 364-67).
In follow-up treatment on January 7, 2013, Claimant reported lower back pain. (Tr. 359).
The doctor observed her gait and station to be normal. (Tr. 361). Examination showed
tenderness to cervical and lumbar spine and an active range of motion. (Tr. 362). She reported
her mood to be better with Celexa. (Tr. 363).
In the February 15, 2013 Intake Narrative at Bootheel Counseling Services and Family
Medical Clinic, Claimant reported seeing a counselor in New Madrid one time. (Tr. 380-82). She
reported working for her biological mother around the house cleaning. (Tr. 384). She receives
food stamps, child support, and Medicaid. (Tr. 384).
On February 19, 2013, Dr. Syed Sayeed evaluated Claimant for hallucinations. (Tr. 387).
She reported she has been working for her mother cleaning her house. (Tr. 388). Dr. Sayeed
diagnosed her with major depression and continued her Pristiq and prescribed Abilify and
Trazodone. (Tr. 388).
IV.

The ALJ's Decision
The ALJ found that Claimant meets the insured status requirements of the Social Security

Act through December 31, 2015. (Tr. 13). Claimant has not engaged in substantial gainful
activity since October 1, 2010, the amended alleged onset date. The ALJ found that the medical
evidence establishes that Claimant has the severe impairments of scoliosis and depression, but no
impairment or combination of impairments listed in, or medically equal to one listed in Appendix
1, Subpart P, Regulations No. 4. (Tr. 13). The ALJ found that Claimant has the residual
functional capacity to lift and carry twenty pounds occasionally and ten pounds frequently, sit six
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hours in an eight-hour workday, and stand and/or walk six hours in an eight-hour workday, but
she is limited to simple and routine tasks that require at most occasional interaction with
coworkers and the public. (Tr. 15). Claimant is unable to perform any past relevant work. (Tr.
18). The ALJ noted she was born on August 9, 1984 and is twenty six years of age so she is a
younger individual on the alleged disability onset date. The ALJ noted Claimant completed the
ninth grade so she has a limited education and able to communicate in English. (Tr. 18).
Considering her age, education, work experience, and residual functional capacity, the ALJ found
there are jobs that exist in significant numbers in the national economy that Claimant can perform
such as an inspector, assembly line worker, and hand packer. (Tr. 18-19). The ALJ concluded
that Claimant has not been under a disability from October 1, 2010, through the date of the
decision. (Tr. 19).
V.

Discussion
In a disability insurance benefits case, the burden is on the claimant to prove that he or

she has a disability. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the
Social Security Act, a disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Additionally, the
claimant will be found to have a disability “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A) and
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1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the
individual is engaged in “substantial gainful activity.” If she is, then she is not eligible for
disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the ALJ must consider step two which
asks whether the individual has a “severe impairment” that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant is
not found to have a severe impairment, she is not eligible for disability benefits. If the claimant is
found to have a severe impairment the ALJ proceeds to step three in which he must determine
whether the impairment meets or is equal to one determined by the Commissioner to be
conclusively disabling. If the impairment is specifically listed or is equal to a listed impairment,
the claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the impairment is not listed or is
not the equivalent of a listed impairment, the ALJ moves on to step four which asks whether the
claimant is capable of doing past relevant work. If the claimant can still perform past work, she is
not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ
proceeds to step five in which the ALJ determines whether the claimant is capable of performing
other work in the national economy. In step five, the ALJ must consider the claimant’s “age,
education, and past work experience.” Only if a claimant is found incapable of performing other
work in the national economy will she be found disabled. 20 C.F.R. § 404.1520(f); see also
Bowen, 482 U.S. at 140-42 (explaining five-step process).
Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
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F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
1.

The credibility findings made by the ALJ.

2.

The claimant's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

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

5.

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

6.

The testimony of vocational experts when required which
is 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) (quoting
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The ALJ’s decision whether a person is disabled under the standards set forth above is

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conclusive upon this Court “if it is supported by substantial evidence on the record as a whole.”
Wiese , 552 F.3d at 730 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008).
“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the conclusion.” Wiese, 552 F.3d at 730 (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). When reviewing the record to determine whether
the Commissioner’s decision is supported by substantial evidence, however, the Court must
consider evidence that supports the decision and evidence that fairly detracts from that decision.
Id. The Court may not reverse that decision merely because substantial evidence would also
support an opposite conclusion, Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001), or it
might have “come to a different conclusion.” Wiese, 552 F.3d at 730. Thus, if “it is possible to
draw two inconsistent positions from the evidence and one of those positions represents the
agency’s findings, the [Court] must affirm the agency’s decision.” Wheeler v. Apfel, 224 F.3d
891, 894-95 (8th Cir. 2000). See also Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (the
ALJ’s denial of benefits is not to be reversed “so long as the ALJ’s decision falls within the
available zone of choice”) (internal quotations omitted).
Claimant contends that the ALJ's decision is not supported by substantial evidence on the
record as a whole, because the ALJ failed to properly assess her credibility. Claimant also
contends that the ALJ failed to give proper weight to the opinion of the examining physician Dr.
Ben Lanpher.
A.

Credibility Determination
Claimant contends that the ALJ's decision is not supported by substantial evidence on the

record as a whole, because the ALJ failed to properly assess her credibility.
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The undersigned will begin with a review of the ALJ’s credibility determination. See
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (it is clearly established that, before
determining a claimant’s RFC, the ALJ must first evaluate the claimant’s credibility).
The Eighth Circuit has recognized that, due to the subjective nature of physical symptoms,
and the absence of any reliable technique for their measurement, it is difficult to prove, disprove
or quantify their existence and/or overall effect. Polaski, 739 F.2d 1321-22. In Polaski, the
Eighth Circuit addressed this difficulty and set forth the following standard:
The absence of an objective medical basis which supports the degree of severity of
subjective complaints alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints. The adjudicator must give full
consideration to 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 duration, frequency and intensity of the pain; (3)
precipitating and aggravating factors; (4) dosage, effectiveness and side effects of
medication; (5) functional restrictions.
Id. at 1322.
A claimant’s complaints of pain or symptoms “shall not alone be conclusive evidence of
disability ... there must be medical signs and findings, established by medically acceptable clinical
or laboratory diagnostic techniques.” Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007)
(citing 42 U.S.C. § 423(d)(5)(A)). An ALJ may not disregard subjective complaints merely
because there is no evidence to support them, but may disbelieve such allegations due to “inherent
inconsistencies or other circumstances.” Id. (quoting Eichelberger v. Barnhart, 390 F.3d 584, 589
(8th Cir. 2004)); see also Polaski, 739 F.2d at 1322 (although the ALJ may not accept or reject
the claimant’s subjective complaints based solely upon personal observations, he may discount
such complaints if there are inconsistencies in the evidence as a whole). The “crucial question” is
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not whether the claimant experiences symptoms, but whether his credible subjective complaints
prevent him from working. Gregg v. Barnhart, 354 F.3d 710, 713-14 (8th Cir. 2003). The
credibility of a claimant’s subjective testimony is primarily for the ALJ, not this Court, to decide,
and this Court considers with deference the ALJ’s decision on the subject. Tellez, 403 F.3d at
957. When an ALJ considers the Polaski factors and discredits a claimant’s subjective complaints
for a good reason, that decision should be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.
2001).
The ALJ is not required to discuss methodically the requisite credibility factors if the ALJ
cites several valid reasons for the adverse credibility findings. See McDade v. Astrue, 720 F.3d
994, 998 (8th Cir. 2013) (credibility determination is entitled to deference if supported by good
reasons and substantial evidence). In evaluating Claimant’s credibility, the ALJ determined that
she was not fully credible, in part because her failure to cooperate by providing answers to the
questions posed at the hearing, her treatment history, her poor earnings record, the reason she
stopped working, she was “unforthcoming with the consultative psychological examine,.” and the
lack of objective medical evidence supporting the degree of severity of subjective complaints
alleged. In his decision the ALJ thoroughly discussed the medical evidence of record and
inconsistencies in the record. See Gray v. Apfel, 192 F.3d 799, 803-04 (8th Cir. 1999) (ALJ
properly discredited claimant’s subjective complaints of pain based on discrepancy between
complaints and medical evidence, inconsistent statements, lack of pain medications, and extensive
daily activities). The ALJ then addressed several inconsistencies in the record to support his
conclusion that Claimant’s complaints were not credible.
The ALJ properly considered the inconsistencies between Claimant's allegations of total
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disability and the objective medical evidence. The medical record reflects how Claimant did not
seek any medical treatment after the alleged date of disability until eighteen months later on May
2, 2012. This illustrates an inconsistency between Claimant’s subjective complaints and the
objective medical evidence. Although Claimant listed back problems as her only physical
impairment allegedly limiting her ability to work, the May 11, 2012 x-rays showed no
compression and minimal scoliosis of her thoracic spine, mild straightening of the normal lordotic
curve suggesting possible muscle spasm of her cervical spine, and lumbar scoliosis of her lumbar
spine. See Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004) (“We have been careful to
explain that an ALJ may disbelieve a claimant’s subjective reports of pain because of inherent
inconsistencies or other circumstances.”). The objective medical evidence does not support the
degree of severity alleged. See Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (an ALJ
may determine that “subjective pain complaints are not credible in light of objective medical
evidence to the contrary”); 20 C.F.R. § 404.1529(c)(2). Likewise, the ALJ further found
Claimant’s credibility undermined by her failure to consistently seek treatment for her allegedly
disabling impairments. See Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997) (complaints of
functional limitations are inconsistent with a claimant’s failure to seek regular treatment for her
symptoms).
As noted by the ALJ, the medical record shows she did not receive mental health
treatment during the relevant period, although she presented to the emergency room and then was
hospitalized in June 2006, four years prior to her alleged disability onset date of October 1, 2010.
Likewise, an eighteen months passed before she sought any additional treatment. Edwards v.
Barnhart, 314 F.3d 964, 968 (8th Cir. 2003) (claimant’s failure to pursue regular medical
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treatment detracted from credibility). Such gap suggests that Claimant’s subjective complaints of
disabling pain are not entirely credible. See Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir. 1995)
(citing Benskin v. Bowen, 830 F.2d 878, 884) (8th Cir. 1987) (holding that the “claimant’s failure
to seek medical treatment for pain” is a legitimate factor for an ALJ to consider in rejecting a
claimant’s subjective complaints of pain). “[T]he failure to seek medical treatment for such a long
time during a claimed period of disability tends to indicate tolerable pain.” Bentley v. Shalala, 52
F.3d 784, 786 (8th Cir. 1995); see Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir. 1994) (holding
that infrequent treatment is a basis for discounting subjective complaints).
Specifically, the ALJ noted that no treating physician in any treatment notes stated that
Claimant was disabled or unable to work or imposed mental limitations on Claimant’s capacity for
work. See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (significant that no examining
physician submitted medical conclusion that claimant is disabled or unable to work); Edwards v.
Secretary of Health & Human Servs., 809 F.2d 506, 508 (8th Cir. 1987) (examining physician’s
failure to find disability a factor in discrediting subjective complaints). The absence of objective
medical basis to support Claimant’s subjective descriptions is an important factor the ALJ should
consider when evaluating those complaints. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir.
2012); Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995)(lack of objective findings to support
pain is strong evidence of lack of a severe impairment); Barrett v. Shalala, 38 F.3d 1019, 1022
(8th Cir. 1994)(the ALJ was entitled to find that the absence of an objective medical basis to
support claimant’s subjective complaints was an important factor in evaluating the credibility of
her testimony and of her complaints).
The ALJ also cited Claimant's work history and poor earnings record as additional factors
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detracting from her credibility regarding the severity of her impairments alleged and her overall
motivation to work versus motivation for benefits inasmuch as her record documents poor and
overall inconsistent earnings. The ALJ noted that "she has a poor work history, even for her age,
never achieving earnings in excess of substantial gainful activity for an entire year. This
demonstrates a lack of work motivation and diminishes her overall credibility.” (Tr. 16). A poor
work history lessens a Claimant's credibility. See Fredrickson v. Barnhart, 359 F.3d 972, 976-77
(8th Cir. 2004)(holding that claimant was properly discredited due, in part, to her sporadic work
record reflecting low earnings and multiple years with no reported earnings, pointing to potential
lack of motivation to work);Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993); see also
Ramirez v. Barnhart, 292 F.3d 576, 581-82 (8th Cir. 2002) (poor work record and financial
motivation for benefits may contribute to adverse credibility determination when other factors cast
doubt upon claimant's credibility); Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (a
poor work history "may indicate a lack of motivation to work, rather than a lack of ability.");
Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996) (low earnings and significant breaks in
employment cast doubt on complaints of disabling symptoms). This is a proper consideration.
See Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011); accord Wildman v. Astrue, 596 F.3d
959, 968-69 (8th Cir. 2010).
Likewise, the ALJ discussed how Claimant alleged she stopped working on the alleged
onset date because of back pain but then she reported that her employment ended because she
was fired. Medhaug v. Astrue, 578 F.3d 805, 816-17 (8th Cir. 2009); Goff v. Barnhart, 421 F.3d
785, 793 (8th Cir. 2005) (explaining it is "relevant to credibility when a claimant leaves work for
reasons other than [his] medical condition."); see also Hensley v. Barnhart, 352 F.3d 353, 357
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(8th Cir. 2003); Depover v. Barnhart, 349 F.3d 563, 566 (8th Cir. 2003) (claimant left his job
because the job ended; therefore, not unreasonable for the ALJ to find that his suggested
impairments were not as severe as he alleged); Weber v. Barnhart, 348 F.3d 723, 725 (8th Cir.
2003) (noting that claimant left her job due to lack of transportation, not due to disability); Ply v.
Massanari, 251 F.3d 777, 779 (8th Cir. 2001) (noting a claimant's inconsistent statements as a
factor to consider in determining claimant's credibility). The ALJ also discussed how Claimant
provided conflicting testimony regarding how he was laid off from his job at the call center. At
the hearing, Claimant testified how he had been laid off. But, during the evaluation with Ms.
Burner, Claimant noted he had been fired for bogus reasons. See Karlix v. Barnhart, 457 F.3d
742, 748 (8th Cir. 2006) (an ALJ may discredit claimant based upon statements that conflict with
other record evidence). It is well-established that the ALJ is permitted to consider inconsistencies
in the evidence and the extent to which there are conflicts between a claimant’s statements and the
rest of the evidence. 20 C.F.R. § 404.1529(c)(4).
Finally, the ALJ considered that, although Claimant “was entirely unforthcoming about her
daily activities” during her testimony at the hearing, she currently raises her young child
independently and has a driver’s license, and she never presented to a treating or examining
source with significant thought disturbance. (Tr. 14). Contradictions between a claimant’s
sworn testimony and what she actually told physicians weighs against the claimant’s credibility.
Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir. 2006). Claimant’s daily activities can be seen as
inconsistent with her subjective complaints of a disabling impairment and may be considered in
judging the credibility of complaints. Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)
(holding that the ALJ properly considered that the plaintiff watched television, read, drove, and
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attended church upon concluding that subjective complaints of pain were not credible); Dunahoo
v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). Indeed, the Eighth Circuit holds that allegations
of disabling “pain may be discredited by evidence of daily activities inconsistent with such
allegations.” Davis v. Apfel, 239 F.3d 962, 967 (8th Cir. 2001). The ALJ properly considered
the hearing testimony as detracting from Claimant's credibility.
The ALJ further noted how she was “unforthcoming with the consultative psychological
examiner.” (Tr. 16). When an examining physician expresses doubts about the validity of a
claimant’s complaints, this is a factor which discounts the claimant’s credibility. Edwards v. Sec’y
of Health & Human Servs., 809 F.2d 506, 508 (8th Cir. 1987); see also Baker v. Barnhart, 457
F.3d 882, 892-93 (8th Cir. 2006) (holding that the ALJ properly discounted the claimant’s
complaints of pain upon considering reports that the claimant exaggerated his symptoms during an
examination) (citing Clay v. Barnhart, 417 F.3d 922, 930 n.2 (8th Cir. 2005) (noting that two
psychologists’ findings that the claimant was “malingering” on her IQ tests cast suspicion on the
claimant’s motivations and credibility); Jones v. Callahan, 122 F.3d 1148, 1151-52 (8th Cir. 1997)
(holding that exaggeration of symptoms is a factor to be weighed in evaluating subjective
complaints of pain); Russell v. Sec’y of Health & Human Servs., 540 F.2d 353, 357 (8th Cir.
1976) (holding that where doctors reported that the claimant was exaggerating her ailments and
was uncooperative, the record did not establish the requisite degree of certainty that the claimant
was disabled). As such, the undersigned finds that the ALJ properly considered the observations
of Dr. Lanpher during the consultative examination.
As demonstrated above, a review of the ALJ's decision shows the ALJ not to have denied
relief solely on the lack of objective medical evidence to support her finding that Claimant is not
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disabled. Instead, the ALJ considered all the evidence relating to Claimant's subjective
complaints, including the various factors as required by Polaski, and determined Claimant's
allegations not to be credible. Although the ALJ did not explicitly discuss each Polaski factor in
making her credibility determination, a reading of the decision in its entirety shows the ALJ to
have acknowledged and considered the factors before discounting Claimant's subjective
complaints. See Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996). Inasmuch as the ALJ
expressly considered Claimant's credibility and noted numerous inconsistencies in the record as a
whole, and the ALJ's determination is supported by substantial evidence, such determination
should not be disturbed by this Court. Id.; Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996).
Because the ALJ gave multiple valid reasons for finding Claimant's subjective complaints not
entirely credible, the undersigned defers to the ALJ's credibility findings. See Leckenby v. Astrue,
487 F.3d 626, 632 (8th Cir. 2007) (deference given to ALJ's credibility determination when it is
supported by good reasons and substantial evidence); Guilliams v. Barnhart, 393 F.3d 798,
801(8th Cir. 2005).
The undersigned finds that the ALJ considered Claimant's subjective complaints on the
basis of the entire record before her and set out the inconsistencies detracting from Claimant's
credibility. The ALJ may disbelieve subjective complaints where there are inconsistencies on the
record as a whole. Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). The ALJ pointed out
inconsistencies in the record that tended to militate against the Claimant's credibility. See
Guilliams, 393 F.3d at 801 (deference to ALJ's credibility determination is warranted if it is
supported by good reasons and substantial evidence). Those included her failure to cooperate by
providing answers to the questions posed at the hearing, her treatment history, her poor earnings
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record, the reason she stopped working, she was “unforthcoming with the consultative
psychological examiner,” and the lack of objective medical evidence supporting the degree of
severity of subjective complaints alleged. The ALJ's credibility determination is supported by
substantial evidence on the record as a whole, and thus the Court is bound by the ALJ's
determination. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006); Robinson v. Sullivan,
956 F.2d 836, 841 (8th Cir. 1992). Accordingly, the ALJ did not err in discrediting Claimant's
subjective complaints of pain. See Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001)(affirming
the ALJ's decision that claimant's complaints of pain were not fully credible based on findings,
inter alia, that claimant's treatment was not consistent with amount of pain described at hearing,
that level of pain described by claimant varied among her medical records with different
physicians, and that time between doctor's visits was not indicative of severe pain).
The undersigned finds that the ALJ's determination is supported by substantial evidence on
the record as a whole. "It is not the role of [the reviewing] court to reweigh the evidence
presented to the ALJ or to try the issue in this case de novo." Wiese v. Astrue, 552 F.3d 728, 730
(8th Cir. 2009) (citation omitted). "If after review, [the court] find[s] it possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner's
findings, [the court] must affirm the denial of benefits." Id. (quoting Mapes v. Chater, 82 F.3d
259, 262 (8th Cir. 1996)). Accordingly, the decision of the ALJ denying Claimant's claims for
benefits should be affirmed.
B.

Weight Given to Examining Doctor
Claimant also contends that the ALJ's decision is not supported by substantial evidence on

the record as a whole, because the ALJ failed to give proper weight to the opinion of the
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examining physician Dr. Ben Lanpher.
The undersigned finds that the ALJ considered Dr. Lanpher’s opinions and gave little
weight to his opinions in his written opinion as follows:
The undersigned reviewed the opinions of Ben Lanpher, Ph.D., who
examined the claimant in March 2011, but assigns his “marked” limitations in
social functioning no weight. First, the claimant was not taking any prescribed
medications on the date of the examination because she was pregnant. More
importantly, Dr. Lanpher clearly relied most extensively on the claimant’s
subjective complaints and reported history, which includes such things as auditory
hallucinations, which are supported nowhere else in the record. Finally, Dr.
Lanpher clearly indicated that the claimant’s effort during testing was
“questionable.” No doctor outside Dr. Lanpher has opined that the claimant has
greater than “moderate” limitation in this area.
(Tr. 14) (internal citations omitted).
As noted by the ALJ, Dr. Lanpher based his opinions primarily on Claimant’s subjective
complaints and reported history, which the undersigned has found are not entirely credible. As
such, the ALJ was entitled to give little or no weight to Dr. Lanpher’s opinion. In the evaluation,
Dr. Lanpher noted how Claimant was referred for a psychological evaluation, and “[a]ccording to
referral information, claimant is alleging back problems, “inability to focus,” depression, and
anxiety. No other information was available for review.” (Tr. 288). Dr. Lanpher noted he did
not have any past medical records and found Claimant to be a “poor historian, volunteering little
information.” (Tr. 290). Likewise, Dr. Lanpher found Claimant’s effort during the evaluation to
be questionable. The ALJ properly found the opinion stated is not supported by the evidence as a
whole and to be based on Claimant’s subjective complaints.
“The amount of weight given to a medical opinion is to be governed by a number of
factors including the examining relationship, the treatment relationship, consistency,

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specialization, and other factors. Generally, more weight is given to opinions of sources who
have treated claimant, and to those who are treating sources.” Phillips v. Colvin, 721 F.3d 623,
630-31 (8th Cir. 2013) (quoting Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003) (citing
20 C.F.R. § 404.1527(d)).
No examining physician in any treatment notes stated that Claimant was disabled or unable
to work or imposed mental limitations on Claimant's capacity for work. See Young v. Apfel, 221
F.3d 1065, 1069 (8th Cir. 2000) (significant that no examining physician submitted medical
conclusion that claimant is disabled or unable to work); Edwards v. Secretary of Health & Human
Servs., 809 F.2d 506, 508 (8th Cir. 1987) (examining physician's failure to find disability a factor
in discrediting subjective complaints). The absence of objective medical basis to support
Claimant's subjective descriptions is an important factor the ALJ should consider when evaluating
those complaints. Renstrom, 680 F.3d at 1065; Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir.
1995)(lack of objective findings to support pain is strong evidence of lack of a severe
impairment); Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir. 1994)(the ALJ was entitled to find
that the absence of an objective medical basis to support claimant's subjective complaints was an
important factor in evaluating the credibility of her testimony and of her complaints). Thus, the
ALJ did not err in giving little weight to Dr. Lanpher’s opinions. Renstrom, 680 F.3d at 1065
(ALJ properly gave treating physician's opinion non-controlling weight when that opinion was
largely based on claimant's subjective complaints and was inconsistent with other medical
experts). As such, the undersigned finds that the ALJ gave proper weight to Dr. Lanpher's
opinions.
“It [is] the ALJ’s task to resolve the differences between ... consultative examinations in
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light of the objective evidence.” Dipple v. Astrue, 601 F.3d 833, 836 (8th Cir. 2010); accord
Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009). No other doctor found Claimant to have
greater than moderate limitations. For the foregoing reasons, the ALJ did not err in his resolution
of the various opinions evaluating Claimant.
The undersigned finds that the ALJ's determination is supported by substantial evidence on
the record as a whole. "It is not the role of [the reviewing] court to reweigh the evidence
presented to the ALJ or to try the issue in this case de novo." Wiese v. Astrue, 552 F.3d 728, 730
(8th Cir. 2009) (citation omitted). "If after review, [the court] find[s] it possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner's
findings, [the court] must affirm the denial of benefits." Id. (quoting Mapes v. Chater, 82 F.3d
259, 262 (8th Cir. 1996)). Accordingly, the decision of the ALJ denying Claimant's claims for
benefits should be affirmed.
For the foregoing reasons, the ALJ’s decision is supported by substantial evidence on the
record as a whole. Inasmuch as there is substantial evidence to support the ALJ's decision, this
Court may not reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court could have decided the case
differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Accordingly, the decision of the
ALJ denying Claimant’s claims for benefits should be affirmed.
Therefore, for all the foregoing reasons,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the final decision of
the Commissioner denying social security benefits be AFFIRMED.
Judgment shall be entered accordingly.
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/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 20th day of January, 2015.

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