Jackson v. Colvin

Filing 24

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 8/31/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MICHAEL D. JACKSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 1:14 CV 69 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the applications of plaintiff Michael
D. Jackson for disability insurance benefits and supplemental security income benefits
under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401, 1381. The
parties have consented to the exercise of plenary authority by the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below,
the decision of the Administrative Law Judge (ALJ) is affirmed.

I. BACKGROUND
Plaintiff was born on March 30, 1982. (Tr. 36.) He filed his applications on
October 15, 2008, alleging an October 10, 2008 onset date, and claiming disability due to
depression, mental problems, type II diabetes, and back pain.

(Tr. 226-29, 270.)

Plaintiff’s applications were denied initially, and he requested a hearing before an ALJ.
(Tr. 120-26.)
On June 8, 2010, following a hearing, the ALJ issued a decision finding plaintiff
was not disabled as defined under the Act. (Tr. 104-15.) On July 6, 2011, the Appeals
Council granted his request for review and remanded for the ALJ to evaluate the severity

of his back impairment; obtain additional evidence concerning his back impairment,
specifically to expand the record to include treatment information relating to plaintiff’s
back impairment following an August 25, 2010 MRI; and obtain evidence from a
vocational expert if warranted. (Tr. 16-18.) On May 18, 2012, following a second
hearing, an ALJ again concluded that plaintiff was not disabled under the Act. (Tr. 1525.)
On April 5, 2014, the Appeals Council denied plaintiff’s request for review. (Tr. 16.) Thus, the ALJ’s decision stands as the final decision of the Commissioner subject to
judicial review.
II. MEDICAL AND OTHER HISTORY
Plaintiff was seen in the emergency room of the Poplar Bluff Regional Medical
Center on January 16, 2008, complaining of being “stressed out.” He appeared mildly
anxious, and the clinical impression was acute anxiety. (Tr. 396-98.)
Plaintiff was seen in the emergency room of the Poplar Bluff Regional Medical
Center on February 7, 2008, following a motor vehicle accident. The clinical impression
was a contusion of his left elbow and a concussion with loss of consciousness. (Tr. 40308.)
On March 7, 2008, plaintiff was seen in the emergency room of the Poplar Bluff
Regional Medical Center for acute bronchitis and an upper respiratory infection. He was
prescribed an antibiotic, as well as Lortab, a combination of hydrocodone, an opioid pain
medication and acetaminophen. (Tr. 412.)
Plaintiff saw Navid Siddiqui, M.D., his primary care physician, at the Kneibert
Clinic on April 11, 2008, for low back pain that was not improving. He had run out of
medication. Dr. Siddiqui prescribed Norco, containing hydrocodone and acetaminophen.
(Tr. 464-65.)
Plaintiff was seen in the emergency room of the Poplar Bluff Regional Medical
Center on May 6, 2008, for chest pain after lifting weights and for low back pain since his
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motor vehicle accident. He was diagnosed with chest strain and low back pain. He was
prescribed Vicodin and discharged. (Tr. 419-21.)
Plaintiff saw Dr. Siddiqui on May 12, 2008, for chronic lumbosacral and shoulder
pain. He was prescribed Norco and aspirin and instructed to follow up in one month. (Tr.
462.)
On June 4, 2008, plaintiff saw Talia Haiderzad, M.D., a psychiatrist, as a new
patient to establish care. He had last seen a psychiatrist in December 2007 and wanted to
get reestablished on medication. He had run out of Geodon, a psychotropic medication
used to treat schizophrenia and the manic symptoms of bipolar disorder, three to four
months earlier. He had been prescribed Geodon because he was hearing voices and seeing
things. He also reported anger problems. Dr. Haiderzad’s possible diagnoses were (1)
psychosis not otherwise specified; and (2) factitious disorder, i.e., a disorder in which the
person acts as if they have a disorder or illness by deliberately feigning or exaggerating
symptoms, as opposed to malingering based upon the fact that he had applied for
disability. Dr. Haiderzad also wanted to rule out borderline intellect. (Tr. 472.)
Plaintiff saw Dr. Siddiqui on June 23, 2008 for monitoring of his chronic
conditions.

All of his conditions were currently being controlled with medications that

included Norco; Zantac, for heartburn; Lipitor, for high cholesterol; Metformin, for type II
diabetes; and Lisinopril, for hypertension. (Tr. 453.) A nurse's note dated June 30, 2008
indicated plaintiff had not been filling his Flexeril prescription since February. (Tr. 444.)
Plaintiff saw Dr. Siddiqui on July 22, 2008 for his back pain. An x-ray of his lumbar
spine was normal. (Tr. 422, 446-47.)
Plaintiff saw Dr. Haiderzad on July 30, 2008. He reported not sleeping well and
poor appetite. He reported being compliant with medications. However, he had lost his
Medicaid and was therefore issued some medication samples.

He reported that his

medications made him sleepy. Dr. Haiderzad’s diagnoses were psychosis and intermittent
explosive disorder. She wanted to rule out borderline intellect. She assigned a GAF score

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of 50, indicating serious symptoms. Dr. Haiderzad discontinued the Geodon and started
Abilify, for psychosis, and Trazodone, for anxiety and depression. (Tr. 471.)
On August 22, 2008, plaintiff saw Dr. Siddiqui for low back pain and recent
numbness in his legs. A nerve study was conducted and was within normal limits. (Tr.
433, 441-42.) Plaintiff saw Dr. Sinniqui for monitoring of his diabetes and back pain in
September and October 2008. Dr. Sinniqui adjusted his medications. (Tr. 424, 430-32.)
Plaintiff saw D.K. Varma, M.D., on October 7, 2008 for back pain, shortness of breath,
abdominal pain, and nervousness. (Tr. 423.)
Plaintiff saw Dr. Haiderzad on July 12, 2008. He was not sleeping or eating well.
He was sleepy during the day and up at night. Dr. Haiderzad’s impression and GAF score
remained the same. (Tr. 470.)
In November 19, 2008 correspondence Dr. Haiderzad stated:
I am writing this note at the request of client. Client has been
under my care since June 4, 2008. He feels he is unable to
work. Indeed he may not. He takes psychotropic medications
for possible psychosis. He has anger issues. He’s hearing
voices and seeing things, he says. Please feel free to contact
us if we can be of any further assistance.
(Tr. 473.)
X-rays of plaintiff’s lumbosacral spine taken December 18, 2008 were within
normal limits. (Tr. 422.)
Plaintiff saw Dr. Siddiqui on four occasions between January and September 2009
for uncontrolled diabetes. He was not compliant with his medications and Dr. Siddiqui
advised him of the risks of noncompliance. (Tr. 492-93, 502-03, 507, 514-16.)
Plaintiff underwent a psychiatric evaluation under Dr. Haiderzad on September 29,
2009 at his own request. Plaintiff reported hearing voices and seeing things, nervousness
and headaches, and feeling depressed. He was having mood swings and anger problems.
His speech was slow, but clear, coherent, and goal directed. He reported seeing lights and
shadows. He also admitted to paranoid ideations. He struggled before he was able to
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mention the current month using his fingers. Dr. Haiderzad diagnosed psychotic disorder,
not otherwise specified. She wanted to rule out major depressive disorder with psychotic
features, schizophrenia, and borderline intellect. She assigned a GAF score of 50, and
prescribed Invega, for schizophrenia, to replace the Geodon which made him sleepy. She
also prescribed Trazodone, a sleep aid, and Klonopin, for anxiety. (Tr. 488-90.)
Plaintiff saw Dr. Siddiqui on October 5, 2009. His diabetes and back pain were
controlled.

He saw Dr. Siddiqui on two occasions in November 2009 for sexual

dysfunction and exposure to chlamydia. (Tr. 533-40.)
Plaintiff saw Dr. Haiderzad on November 23, 2009 and reported doing “alright.”
His medication was helping him sleep, and he denied any side effects except for fatigue.
Plaintiff asked Dr. Haiderzad to increase his Klonopin because he was nervous and
shaking a lot. His Klonopin was increased and he was continued on Invega. (Tr. 568.)
Plaintiff saw Dr. Siddiqui on three occasions for monitoring during December 2009
and January 2010. (Tr. 541-45.) Plaintiff was seen on January 2 and 5, 2010, for left
shoulder pain following an injury while lifting weights. An x-ray was negative. (Tr. 54750.)
Plaintiff saw Dr. Haiderzad on February 1, 2010, and reported “doing fine” and
“doing good.” He had been trying to exercise. He did not sleep much. He had been
seeing things and hearing voices again. He had been compliant with medications but had
run out a week ago and did not call for a refill because his appointment was approaching.
Dr. Haiderzad assigned a GAF score of 50. She increased his Invega and Trazadone. (Tr.
569.)
Plaintiff saw Dr. Siddiqui on February 10, 2010 for chronic left shoulder pain. An
MRI showed mild tendinosis or degeneration due to chronic overuse and minimal
degenerative changes of the acromioclavicular joint. (Tr. 565-66.)
Plaintiff saw Dr. Siddiqui on a monthly basis from February to April 2010. Dr.
Siddiqui noted “patient’s last 2 urine drug screens are negative for prescribed hydros. I
will not be giving him pain pills any more.” (Tr. 586-92.)
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Plaintiff saw Dr. Haiderzad on May 3, 2010. He stated he was “doing all right”
and compliant with his medications but one side effect was that he felt weak. He had few
friends. Dr. Haiderzad assessed a GAF score of 50. (Tr. 576.)
Plaintiff saw optometrist Kayla Melton on May 27, 2010 for a diabetic eye exam
which was normal. (Tr. 595-600.)
Plaintiff was seen at the Kneibert Clinic for monitoring in June and July 2010. On
one occasion his diabetes was noted to be uncontrolled. (Tr. 604-13.)
Plaintiff saw Dr. Haiderzad on July 27, 2010. He reported hearing noncommand
type voices again which were annoying to him. Plaintiff complained his medications were
making him feel tired and he was spending a lot of time in his room as a result. His mood
was tired. Dr. Haiderzad increased his Invega and continued his other medications. (Tr.
577.)
Plaintiff saw Wendel Elliot, M.D., at the Kneibert Clinic on August 20, 2010 for
his low back pain. Tramadol was not helping. (Tr. 616.) An August 25, 2010 MRI of his
lumbar spine showed (1) developmentally narrow central spinal canal; (2) moderate
central spinal canal stenosis or narrowing; (3) left paracentral disc protrusion; (4) multilevel foraminal stenosis; and (5) multi-level facet hypertrophy. (Tr. 579.)
Plaintiff saw Dr. Elliot for diabetes monitoring on October 18, 2010. Physical
exam showed a “thin, muscular, healthy young man.” He reported that if he goes running
his glucose level gets too low. He was advised to do regular but lighter exercise. He had
back and left shoulder pain. Plaintiff stated that he would not be interested in surgery for
his back if it was offered. (Tr. 620-21.)
Plaintiff saw Dr. Elliot on January 11, 2011 for diabetes monitoring. (Tr. 627-31.)
A March 2, 2011 x-ray of his left shoulder was negative. (Tr. 581-82.) An April 7, 2011
MRI of his cervical spine showed mild degenerative changes in the lower cervical spine.
(Tr. 583.) An MRI of his left shoulder showed mild rotator cuff tendinosis and mild
degenerative changes of the acromioclavicular joint. (Tr. 585.) Plaintiff continued to be

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seen at the Kneibert Clinic during July and September 2011 for ongoing back and
shoulder pain. (Tr. 636-44.)
Dr. Elliott referred plaintiff to Nurse Practitioner Debra Price and Naveed Mirza,
M.D., a psychiatrist, on September 7, 2011, for panic and anxiety. He had run out of
medication, including his Klonopin, over two weeks earlier. He reported mood swings.
He was diagnosed with generalized anxiety disorder, major depressive disorder, and
intermittent explosive disorder. Dr. Mirza wanted to rule out bipolar affective disorder.
He was started on Invega; Vistaril, for anxiety; Risperdal, for schizophrenia; and Celexa,
an antidepressant.

Dr. Mirza assigned a GAF score of 55, indicating “moderate”

symptoms. He was scheduled for follow up in two weeks. (Tr. 647-54.)
Plaintiff saw Dr. Mirza on September 21, 2011 to establish care after his previous
psychiatrist had moved. He stated that he was hearing voices, was nervous a lot, and
tended to shake and sweat. He had paranoia and low frustration tolerance. He had
difficulty in social situations most of the time. He was started on Paxil, an antidepressant,
and his Celexa was discontinued. (Tr. 655-58.)
Plaintiff saw Shaun Ross, M.D., on October 19, 2011 during an acute diabetes
visit. Plaintiff’s compliance was poor and his blood sugars were elevated. He weighed
252 pounds and his BMI was 30.79. The plan was to continue current management and
try harder to manage his diabetes. (Tr. 665-70.)
Plaintiff saw Nurse Price on October 31, 2011 for medication management. He
was mildly depressed, had moderate panic attacks, and wanted to get back on his
psychiatric medications.

He was started on Ambien, a sleep aid, and his other

medications were continued. (Tr. 672-74.)
Plaintiff saw Nurse Price again on November 28, 2011 for medication
management. He was taking Ambien and Invega but had stopped taking Vistaril and Paxil
because he did not think they were helping and made him feel sedated. He reported
hearing noncommand voices at times and knew not to act on them. (Tr. 682.)

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Plaintiff ran out of Invega on December 19, 2011, and his prescription was refilled.
(Tr. 692.) He saw Nurse Price on January 9, 2012. He had spent Christmas alone but
“was ok with that.” (Tr. 685.) He was having increased depression and anxiety at times.
He had run out of medication and had been out “for a while.” (Id.) He needed Ambien to
sleep. He was started on Wellbutrin, an antidepressant. (Tr. 685-87, 693.)
Plaintiff saw Nurse Price on March 7, 2012 and was doing about the same. His
blood sugars were running low in the morning. He continued to hear voices off and on
and was seeing things. He reported that his hallucinations were “no worse and seemed to
be as good as they get.” His psychiatric medications were continued. (Tr. 699-701.)
On April 4, 2012, plaintiff saw Dr. Elliott for a follow up for his back pain. He had
a skin rash and paresthesia, a tingling or prickling to his right leg and foot. He was
prescribed Gabapentin for the paresthesia. (Tr. 706-08.)

ALJ Hearing
The ALJ conducted a hearing on April 17, 2012. (Tr. 32-72.) Plaintiff, represented
by counsel, appeared and testified to the following. He was 29 years old and lived with
his mother and 11 year-old son. He graduated from high school and completed welding
school thereafter.

He is claiming disability due to depression, anxiety, diabetes,

migraines, and back problems. While his blood sugars are erratic, he has not been
hospitalized for any reactions. He cannot recall the names of medications he is taking. He
has headaches every other day that last about one half hour. (Tr. 35- 40.)
He spends his days watching TV and playing video games. He does not do any
household chores or yard work and mostly stays in his room. (Tr. 41-42.)
He did temporary work cleaning offices in 2004 and 2005. He has not sought work
because he does not go out. He has no difficulty attending to his personal needs. He takes
hydrocodone for his back pain. He has tried shots for his back pain but walked out
because the needle was too long. He cannot afford physical therapy and does not perform
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home exercises. He is supposed to follow a diabetic diet but does not do so and eats what
his mother cooks for him. (Tr. 42-45.)
He has criminal convictions for second degree assault and auto theft. He has five
children, ages nine weeks to eleven years old, who come to visit twice a month. His back
hurts when he stands for long periods of time. He can stand for about thirty minutes
before he needs to sit. When his back “goes out,” he can barely move and he treats it with
cream and a heating pad for several hours. He is afraid of undergoing back surgery. (Tr.
42-48, 53.)
About three times per week he hears voices he does not recognize and that talk to
each other. The voices interfere with his ability to concentrate and he gets shaky and
frightened. He considers himself paranoid. He does not like being around people and gets
shaky and wants to fight when he is around others. (Tr. 48-51.) He did not have much
work to do when he worked cleaning offices. He has trouble falling asleep and making
and keeping friends. He has difficulty remembering what he has read. He does not know
how to cook. His mother does all of the grocery shopping. He has a driver’s license but
does not drive much due to his paranoia. He is not good at reading or math. He plays
video games for three to four hours at a time. (Tr. 50-56.)
He stopped working cleaning offices because his employer hired someone else.
However, he was never advised that he was not doing his job properly. He worked for
Nordyne stacking boxes but quit because people were “messing” with him by talking
about him. He did temporary work for Manpower but was never called back. He left
work at Tyson Chicken because he went to jail. He loaded furniture for Rowe Industries
and left again because he went to jail. He has performed assembly line work but was fired
following an altercation with another employee. (Tr. 66-68.)
Medical Expert Durado Brooks, M.D., an internist, also appeared and testified to
the following. Plaintiff’s medical impairments include chronic low back pain, moderate
degenerative disc disease, chronic left shoulder pain with evidence of tendonosis and mild
degenerative joint disease. He has mild degenerative disease involving the cervical spine.
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He is diabetic and hypertensive. Dr. Brooks opined that plaintiff did not meet or equal a
listing since October 2008. Plaintiff has the RFC to lift and carry up to twenty pounds
occasionally and ten pounds frequently; sit for six hours and stand and/or walk for six
hours in an eight-hour workday; occasionally push/pull and reach overhead with the left
arm; and only occasionally balance, stoop, kneel, crouch, and crawl. He must never climb
ladders, ropes, or scaffolds, and must have only limited exposure to vibration.

(Tr. 57-

59.)
Medical Expert Karyn Perry, a clinical psychologist, also appeared and testified to
the following. Plaintiff has been treated for psychosis disorder not otherwise specified
since 2008. A major depressive disorder was ruled out and more information was needed
in order to make a definitive diagnosis. Because plaintiff had a previous diagnosis of
malingering, and there was a current question of a factitious disorder, Dr. Perry believed
that plaintiff did not meet or equal a listing. She opined that plaintiff had mild limitation
in activities of daily living, moderate limitation in social functioning and concentration,
persistence or pace, and no episodes of extended decompensation. She believed that
plaintiff could perform simple and/or repetitive work that did not require close interaction
with the public or coworkers. She did not think that plaintiff’s current living situation
wherein his mother took care of all of his needs was the healthiest environment. (Tr. 5965.)
John Grenfell, a vocational expert (VE), also testified at the hearing. Plaintiff has
past relevant work that is light and medium. The VE was asked to assume a hypothetical
individual with the same age, education and work experience as plaintiff who was limited
to lifting twenty pounds occasionally and ten pounds frequently. The individual could
stand/walk for two hours in an eight-hour workday. He could sit for six hours in an eighthour workday. He could occasionally push/pull using the left upper extremity. He was
prohibited from climbing ladders, ropes, or scaffolds. Balancing, stooping, kneeling,
crawling, and crouching was limited to occasionally. Overhead reaching with the left
upper extremity was limited to occasionally.
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He must avoid whole-body vibration

exposure. He was limited to simple/repetitive work that did not require close interaction
with the public or coworkers. The VE testified that plaintiff could not perform his past
relevant work under that hypothetical, however, there were other jobs at the sedentary
level he could perform such as surveillance system monitor, order clerk, and addresser.
The hypothetical individual would be terminated if were to miss more than two days of
work per month. (Tr. 65, 68-70.)

Decision of the ALJ
On May 18, 2012, the ALJ found that plaintiff was not disabled as defined under
the Act.

(Tr. 15-25.)

The ALJ found that plaintiff had the severe impairments of

degenerative disc disease of the lumbar and cervical spine, mild degenerative joint disease
of the left shoulder, depression, generalized anxiety disorder, and a psychotic disorder not
otherwise specified. (Tr. 17.) The ALJ found that he did not have an impairment or
combination of impairments listed in or medically equal to one contained in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Tr. 18.)
The ALJ determined that plaintiff retained the residual functional capacity (RFC)
to lift and carry up to twenty pounds occasionally and ten pounds frequently; sit for six
hours and stand and/or walk for six hours during an eight-hour workday; occasionally
push/pull and reach overhead with the left arm; and only occasionally balance, stoop,
kneel, crouch, and crawl. Plaintiff was limited to simple and routine tasks that required
only occasional interaction with the public and coworkers. (Tr. 20.)
The ALJ rejected plaintiff’s assertion that that he was limited to jobs of only
Reasoning Level 1, noting that testing at age thirteen was not representative of an
individual’s permanent level of functioning, and in this case was contradicted by the fact
that plaintiff graduated from high school. He also noted there was no record evidence of
ongoing cognitive deficits to support a finding plaintiff was limited to Reasoning Level 1
jobs. He denied plaintiff’s request for additional development on that issue because no
treating or examining source suggested plaintiff had cognitive deficits. He noted that Dr.
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Perry testified that plaintiff had only “moderate” limitation in maintaining concentration,
persistence, or pace, and that such a limitation is not consistent with the ability to perform
Reasoning Level 1 jobs only. Finally, the ALJ noted that plaintiff’s earnings and work
history indicate that as a janitor in 2005 he achieved earnings consistent with substantial
gainful activity, a Reasoning Level 3 job. (Tr. 23.)
The ALJ found that plaintiff’s impairments would not preclude him from
performing work that exists in significant numbers in the national economy, including
work as a surveillance system monitor, order clerk, and addresser.

(Tr. 24.)

Consequently, the ALJ found that plaintiff was not disabled. (Tr. 25.)

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.

42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
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v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process); Pate-Fires,
564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3)
his disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of demonstrating
he is no longer able to return to his PRW.

Pate-Fires, 564 F.3d at 942.

If the

Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.

Id.; 20 C.F.R. §

404.1520(a)(4)(v).

V. DISCUSSION
Plaintiff argues that the ALJ erred in failing to include additional limitations in his
hypothetical question to account for his reading, writing, and general intellectual
limitations. This court disagrees.
Plaintiff’s argument that the hypothetical question did not capture the extent of his
limitations implicitly puts the ALJ’s credibility analysis into question.

An ALJ’s

hypothetical question need only account for those functional limitations that the ALJ finds
are credible and well supported by the record. See Smith v. Colvin, 756 F.3d 621, 627
(8th Cir. 2014).

Discredited subjective complaints are properly excluded from a

hypothetical question so long as the ALJ had reason to discredit them. See Guilliams v.
Barnhart, 393 F.3d 798, 804 (8th Cir. 2005).
In this case, most of the functional limitations plaintiff alleges would render him
disabled are essentially subjective, including his reports of pain and his mental
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impairments.

The ALJ in this case properly determined that plaintiff’s subjective

complaints were not credible. Therefore, his hypothetical question properly accounted for
only those functional limitations that were credible based on the record as a whole.
Specifically, the ALJ first noted plaintiff’s questionable work history. Plaintiff had
a history of low earnings with only two years of earnings at the substantial gainful activity
level. (Tr. 22, 256.) See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (lack
of work history may indicate a lack of motivation to work rather than a lack of ability).
The ALJ also noted that plaintiff’s alleged onset date, October 10, 2008, did not
correspond with any medical event. (Tr. 22.) Instead, plaintiff indicated that he stopped
working at his most recent job because his employer went out of business. (Tr. 270.)
Plaintiff also lost three other jobs after serving time in jail. (Tr. 67.) The fact that a
claimant left a job for reasons other than his medical condition is a proper consideration in
assessing credibility. See Medhaug v. Astrue, 578 F.3d 805, 816-17 (8th Cir. 2009)
(relevant that claimant did not leave his position because of any back injury but because
he was laid off due to a decline in work; claimant’s alleged onset date was the same as
date he was laid off). The ALJ also noted that plaintiff’s reports about his daily activities
weighed against his credibility. While plaintiff testified that he had trouble concentrating,
he also indicated that he played video games three to four hours a day. (Tr. 56.) Plaintiff
also testified that he was anxious being around people and mostly kept to himself.
However, plaintiff had had a number of girlfriends and had fathered five children. (Tr. 46,
48, 54, 80.) Despite his alleged physical impairments, including back pain, the record
evidence showed plaintiff’s activities included weightlifting as recently as 2010. (Tr. 420,
547, 550.) See Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001) (activities that are
inconsistent with a claimant’s assertion of disability reflect negatively upon that claimant's
credibility).
The ALJ further observed that despite his reports of severe back pain, plaintiff had
undergone only conservative treatment, and there was no record evidence that he was in
pain management or physical therapy. Nor was plaintiff ever referred for surgery. (Tr.
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22.) See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (pattern of conservative
medical treatment is a proper factor for an ALJ to consider in evaluating a claimant’s
credibility).
The ALJ also noted that none of plaintiff’s doctors ever indicated that he had any
long-term exertional or non-exertional limitations or concluded that that he was disabled
and unable to perform any type of work. (Tr. 23.) Cf. Young v. Apfel, 221 F.3d 1065,
1069 (8th Cir. 2000) (lack of significant restrictions imposed by treating physicians
supported the ALJ’s decision of no disability). Finally, the ALJ noted that plaintiff was
noncompliant with treatment on several occasions. (Tr. 18, 23, 502, 507, 594, 647, 665.)
See Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (noncompliance with
treatment is a proper factor in the credibility analysis). Based on all of these factors, the
ALJ properly determined that plaintiff’s subjective complaints were not entirely credible.
See Gragg v. Astrue, 615 F.3d 932, 940 (8th Cir. 2010) (hypothetical question posed by
the ALJ incorporated the physical, mental, and cognitive impairments that the ALJ found
to be credible, and excluded those impairments that were discredited or that were not
supported by the evidence presented).
Plaintiff’s sole argument on appeal is that the ALJ erred in failing to include
additional limitations in his hypothetical question to account for his reading, writing, and
general intellectual limitations. In support, he cites school records from 1989 to 1995
when he was seven to thirteen years old. However, the relevant period in this case is from
October 10, 2008 through May 18, 2012. Accordingly, the issue is plaintiff’s level of
functional impairment during that period, not when he was a child. Plaintiff assumes
incorrectly that his level of functioning as reported in 1995 accurately reflects his current
ability. As the ALJ noted, Social Security regulations recognize that results of testing can
vary substantially over the course of childhood. Thus, these scores are not considered
reliable for an extended period of time after testing. (Tr. 23.) See 20 C.F.R. Pt. 404,
Subpt. P., App. 1, § 112.00(D)(10). As the ALJ noted, there is no record evidence that
plaintiff’s early academic performance is representative of his status during the relevant
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period here, as he seems to suggest. (Tr. 23). On the contrary, the ALJ noted that plaintiff
graduated from high school and subsequently completed vocational training for welding.
(Tr. 23, 36, 276.)
Plaintiff also claims that he has difficulty reading and following written directions
and needs others to assist him with reading. However, this is contradicted by his own
application for benefits wherein he indicated that he could read and understand English.
(Tr. 269.) He also cites Dr. Haiderzad’s “rule out” diagnoses of borderline intellectual
functioning.

(Tr. 471-72, 489.)

While Dr. Haiderzad had considered borderline

intellectual functioning, she later ruled it out. (Tr. 487, 569, 576-77.)

The ALJ also

noted that other record evidence from the relevant period does not suggest that plaintiff
had academic or intellectual limitations beyond those already accounted for in his RFC.
(Tr. 23.) Finally, plaintiff did not allege disability due to an intellectual impairment at the
administrative hearing. (Tr. 37.) This court concludes that the record evidence from the
relevant period does not support limitations due to intellectual impairments beyond the
limitations already included by the ALJ in his RFC determination.
Plaintiff argues that his limited reading ability precludes him from performing the
jobs identified by the VE. However, from record evidence from 1989 through 1995,
plaintiff relies on his own testimony.

As previously discussed, the ALJ properly

determined that plaintiff’s subjective complaints were not credible for a variety of reasons.
(Tr. 22-23.)
Plaintiff also contends that the ALJ mischaracterized his past work as a janitor. He
argues that it should have been characterized as a “cleaner,” as defined in the Dictionary
of Occupational Titles. However, plaintiff’s past work as a janitor was only one reason
offered by the ALJ for rejecting plaintiff’s contention that he was limited to jobs with a
Reasoning Level of 1. The ALJ rejected plaintiff’s argument because he graduated from
high school, completed vocational training as a welder, and no medical source had
diagnosed any intellectual disability. (Tr. 23.) As stated earlier, Dr. Haiderzad considered
borderline intellectual functioning but later ruled it out. Finally, the ALJ also properly
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considered the opinion of psychological expert Dr. Perry. Dr. Perry testified that she
reviewed all of plaintiff’s psychiatric records and opined that none supported limitations
beyond those incorporated into the ALJ’s RFC determination. (Tr. 60-65.)
Plaintiff argues that remand for additional cognitive testing is justified based on
Gasaway v. Apfel, 187 F.3d 840 (8th Cir. 1999). However, Gasaway is distinguishable on
several grounds. First, Ms. Gasaway was not represented by counsel, and under such
circumstances, an ALJ has a heightened duty to develop the record.

See Miller v.

Sullivan, 953 F.2d 417, 422 (8th Cir. 1992). The absence of counsel was particularly
relevant there because a claimant with an intellectual disability could not reasonably be
expected to fully develop her own case. Second, Ms. Gasaway provided academic records
that placed her IQ scores in a range that would render her disabled under the Listings. See
187 F.3d at 843. In this case, plaintiff’s IQ scores were much higher and indicated he was
in the low average range of intellectual functioning. (Tr. 338.)

Third, despite Ms.

Gasaway’s low test scores placing her in the mental retardation range, the agency’s
decision in Gasaway did not show that the ALJ evaluated and rejected, or even noticed,
the possibility that Ms. Gasaway might be mentally impaired in some way. 187 F.3d at
843. In contrast, the ALJ here clearly considered plaintiff’s asssertions of an intellectual
disability and noted the results of early testing from 1995. The ALJ concluded that the
record as a whole indicated that those test results were outdated and not an accurate
reflection of plaintiff’s current level of functioning. (Tr. 23.) For these reasons, the ALJ’s
decision is distinguishable from Gasaway.
VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.
S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE

Signed on August 31, 2015
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