Miller v. Colvin

Filing 17

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. Signed by District Judge Carol E. Jackson on 3/7/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOSEPH MILLER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 1:14-CV-149 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I.

Procedural History

On June 15, 2011, plaintiff Joseph Miller filed an application for supplemental
security income benefits,

1

Title XVI, 42 U.S.C. §§ 1381–1385, with an alleged

onset date of September 21, 2010.2 (Tr. 137–44). After plaintiff’s application was
denied on initial consideration (Tr. 87–91), he requested a hearing from an
Administrative Law Judge (ALJ). (Tr. 92–95).
Plaintiff and counsel appeared for a video teleconference hearing on May 21,
2013.

(Tr. 25–52).

June 10, 2013.
1

The ALJ issued a decision denying plaintiff’s application on

(Tr. 12–20).

The Appeals Council denied plaintiff’s request for

Plaintiff filed an earlier claim for supplemental security income benefits on October 22, 2008, which
an ALJ denied on September 20, 2010. (Tr. 53–68). The ALJ reviewing that application found that
plaintiff’s impairments were not severe as to constitute a disability. The Appeals Council denied
review, and the ALJ’s decision was affirmed by this court on March 18, 2013. See Miller v. Astrue, No.
1:12-CV-00015, 2013 WL 1103904 (E.D. Mo. Mar. 18, 2013) (adopting the report and
recommendation of the magistrate judge).
2
The ALJ determined that the earliest plaintiff was eligible to receive benefits was the month following
the month he filed his application for supplemental security income benefits, but nonetheless
considered plaintiff’s complete medical history. (Tr. 12, 17, 137). See 20 C.F.R. §§ 416.335,
416.912(d). 

review on August 22, 2014. (Tr. 1–6). Accordingly, the ALJ’s decision stands as
the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In a Disability Report dated June 15, 2011 (Tr. 154–63), plaintiff listed his
disabling conditions as manic depression, bipolar disorder, anxiety, high blood
pressure, and back problems. He listed his height as 6’6’’ and his weight as 330
pounds. In a Work History Report (Tr. 164–79), plaintiff wrote that he had worked
as a store custodian for seven months in 2010 and as a dishwasher in a restaurant
for two weeks in 2005.
In a Function Report dated June 22, 2011 (Tr. 180–96), plaintiff wrote that
his wife took care of their child and dog, helped him take his medications every
day, prepared meals, and “help[ed] control [his] life.” Plaintiff did not report any
problems with personal care, but wrote that he needed reminders from his wife to
shave or get a haircut. He went outside once a day at most. Because of insomnia,
plaintiff stated that he did not sleep at night. If he felt well enough, he watched
television as a hobby.

Plaintiff was capable of paying bills, handling a savings

account, and counting change.

Plaintiff rarely socialized with others, writing that

“people [] throw me into a bipolar attack, depression, and sometimes give[] me
anxiety attacks.” (Tr. 189). He wrote that he problems lifting because of swelling
back pain.

He also reported having difficulties following instructions and getting

along with authority figures. With respect to his problems handling stress, plaintiff
stated that he had been taken to the hospital and “had to stay for 5 or more days.”
(Tr. 190). In a Disability Report completed for his appeal (Tr. 205–12), plaintiff did

2

not report any new illnesses, conditions, medications, or changes in his daily
activities.
B. Testimony at the Hearing
Plaintiff was 26 years old on the date of the hearing. (Tr. 31). He was 6’6’’
and 365 pounds. He had an eleventh grade education.

He was not working at that

time and testified that the last time he worked was in 2006. He had never worked
full-time.

When the ALJ asked him about earnings reported for 2010 and 2011,

plaintiff insisted that his wife was the only one who worked in his household. (Tr.
31–32). She was employed at a hotel. Plaintiff stated that he stayed at home and
watched television.

However, he needed to get up and move around for 5–10

minutes every 15–20 minutes because of pain in his back. (Tr. 32–33). Plaintiff
had a driver’s license and reported occasionally driving to the store. (Tr. 34). He
took care of his three-year-old daughter with help from his father who lived with
plaintiff and his family.

Plaintiff stated that he did not have any friends.

He

attended church about once a month.
Upon questioning by his attorney, plaintiff testified that his manic depression,
anxiety and panic attacks limited his ability to work. (Tr. 35–36). He stated that it
was hard for him to be around people, and he had mood swings and side effects
from the medications he took.

He reported having panic attacks for four or five

years and currently had them twice a week. Being nervous or stressed caused his
panic attacks.

(Tr. 37).

Going into town, going to the store, and being around

people made him stressed or nervous. The medication he took for his panic attacks
took 30–45 minutes to help him. After a “real bad” panic attack, he felt extremely
exhausted. (Tr. 39).

3

Plaintiff also stated that he had depression that affected him three days a
week. When he felt depressed, he didn’t “want to see the world” and wanted to
stay at home. On the days he was depressed, he would watch television and delay
personal hygiene until the evening.

Plaintiff also reported manic symptoms or

thoughts that everyone was out to get him. (Tr. 38). When he was having a manic
episode, he experienced nervousness, shaking, and his heart raced.

These

problems occurred every day. As to the quality of his sleep at night, plaintiff stated
that he tossed and turned and had back pain.

(Tr. 39).

Because of sleep

deprivation, he felt tired throughout the day.
Plaintiff and his family lived in a one-story house with a yard that his father
took care of. (Tr. 41–42). The last time plaintiff tried to help his father mow the
grass, he felt as if he was having a heart attack. His last place of employment six
or seven years prior was at his father’s heating and cooling business where plaintiff
helped his father. He testified that he discontinued this work because he became
too tired and out of breath when attempting to move tools and equipment six
flights of stairs.

(Tr. 43). His other past employment was as a dishwasher at a

restaurant. (Tr. 47).
Jo Ann M. Yoshioka, a vocational expert, provided testimony regarding the
employment opportunities for an individual of plaintiff’s age, education, and work
experience.

(Tr. 47–48).

The ALJ first asked Ms. Yoshioka if there was any

competitive work for such an individual limited to sedentary, non-public work, with
simple, routine tasks.

The vocational expert responded that such an individual

would be capable of performing work as a hand almond blancher and an ampoule
sealer. Plaintiff’s counsel posed a second hypothetical to Ms. Yoshioka, asking her

4

to include a limitation that twice a week the person would need an unscheduled
work break for 30–45 minutes due to his or her health.

(Tr. 48–49).

The

vocational expert replied that such an individual could not perform the jobs she had
mentioned.

Because those two jobs are production jobs, the vocational expert

stated that an employee could be off task no more than five percent of the time.
C. Medical Records
On May 1, 2009, an x-ray of plaintiff’s lumbar spine showed spina bifida
occulta3 of S1 and slight scoliosis.

(Tr. 316).

Plaintiff requested osteopathic

manipulative treatment for his back pain at the Advanced Healthcare Medical
Center on January 8, 2010.

(Tr. 309–11).

Paul Rains, D.O., provided the

treatment to plaintiff’s lumbar, thoracic and cervical back, which plaintiff tolerated
well.

Dr. Rains prescribed plaintiff Ultracet4 as needed for pain and Flexeril5 for

muscle spasms.
From November 23 through November 27, 2010, plaintiff was voluntarily
admitted to the adult psychiatric unit at Twin Rivers Regional Medical Center and
placed on suicide precautions.

(Tr. 228–43).

Upon admission, plaintiff reported

experiencing depression, marital issues with in-laws and financial problems.

He

reported compliance with his medications, but had stopped seeing his psychiatrist
and therapist six months earlier. Routine laboratory work-ups were unremarkable,
but his urine drug screen test was positive for marijuana.
3

Talia Haiderzad

Spina bifida occulta is a common, mild form of spina bifida, where there is a small gap in the spine
that
usually
does
not
cause
nervous
system
problems
or
any
disabilities.
http://www.spinabifidaassociation.org/site/c.evKRI7OXIoJ8H/b.8277205/k.5ED4/Spina_Bifida_Occulta
.htm (last visited July 30, 2015); http://www.cdc.gov/NCBDDD/spinabifida/facts.html (last visited
Aug. 4, 2015).
4
Error! Main Document Only.Ultracet is indicated for the short term (five days or less)
management of acute pain. See Phys. Desk Ref. 1462–63 (60th ed. 2006).
5
Error! Main Document Only.Flexeril is indicated as an adjunct to rest and physical therapy for
relief of muscle spasm associated with acute musculoskeletal conditions. See Phys. Desk Ref. 1832–
33 (60th ed. 2006). 

5

estimated plaintiff’s Global Assessment of Functioning (GAF) score to be 356 the
day after he was admitted.
Lunesta.9

Medical

Plaintiff was prescribed Cymbalta,7 Lamictal,8 and

providers

enrolled

plaintiff

in

multiple

disciplinary

psychotherapeutic activities while he was in the unit for supportive psychotherapy.
He showed improvement with treatment and no longer had suicidal thoughts or
feelings of depression. Plaintiff was discharged on November 27th with a GAF score
of 50.10

Amy Lockhert, M.D. diagnosed plaintiff with severe, recurrent major

depressive disorder and recommended lifestyle modifications, cessation of tobacco,
exercise, weight loss, and use of Lisinopril11 and Clonidine12 as needed.
Plaintiff sought outpatient behavioral care from Patrick Oruwari, M.D., at
Potosi Rural Health Clinic on March 29, 2011.

(Tr. 247–48).

In his notes of

plaintiff’s medical history, Dr. Oruwari noted that plaintiff’s condition was
complicated by paranoia and panic attacks.

Plaintiff denied drug or alcohol use.

Dr. Oruwari noted that plaintiff “gives up easily, which he attributes to his
depression.”

Plaintiff’s wife was his only friend and he watched television and

6

Error! Main Document Only.A GAF of 31–40 corresponds with “some impairment in reality testing
or communication . . . OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood.” American Psychiatric Association, Diagnostic & Statistical
Manual of Mental Disorders - Fourth Edition, Text Revision 34 (4th ed. 2000).
7
Error! Main Document Only.Cymbalta, or Duloxetine, is used to treat depression and generalized
anxiety disorder; pain and tingling caused by diabetic neuropathy and fibromyalgia.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
8
Error! Main Document Only.Lamictal, or Lamotrigene, is used to increase the time between
episodes of depression, mania, and other abnormal moods in patients with bipolar disorder.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on December 17, 2014).
9
Error! Main Document Only.Lunesta, or Eszopiclone, is in the class of medications called hypnotics
and is used to treat insomnia. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a605009
.html (last visited on Mar. 9, 2011).
10
Error! Main Document Only.A GAF of 41–50 corresponds with “serious symptoms OR any serious
impairment in social, occupational, or school functioning.”
American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 34 (4th ed. 2000).
11
Error! Main Document Only.Lisinopril is indicated for the treatment of hypertension. See Phys.
Desk Ref. 2053 (61st ed. 2007).
12
Error! Main Document Only.Clonidine is indicated for treatment of hypertension. See Phys. Desk
Ref. 843 (61st ed. 2007). It is also used in the treatment of alcohol and narcotic withdrawal.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682243.html (last visited Mar. 9, 2011). 

6

stayed at home for fun.
himself.

He wanted to have friends, but said he could not push

Plaintiff had stopped seeing his primary care physician because of the

prolonged wait time.

Medicine helped his condition, but he had run out of his

medicine three weeks earlier.

He reported experiencing depression with mood

swings. He told Dr. Oruwari that he recently had been admitted to psychiatric care
for eight days due to suicidal thoughts, but he had never attempted suicide. Upon
examination, plaintiff had poor eye contact, slow speech rate, retardation of his
psychomotor skills, withdrawn behavior, and coherent process.
diagnosed

plaintiff

with

bipolar

disorder-depressed,

panic

Dr. Oruwari

disorder

without

agoraphobia, avoidant personality disorder, and hypertension. The doctor assigned
plaintiff a GAF score of 48.

He prescribed plaintiff Cymbalta, Lamictal,

Alprazolam,13 and Trazodone14 and instructed him to follow-up in two months.
Plaintiff returned to see Dr. Oruwari on July 14, 2011 and complained of
running out of his medications.

(Tr. 260).

When he was complaint with his

medicine, he reported that he felt better. Plaintiff had not had any recent manic
episodes, but still had anxiety with panic attacks.

He was mildly depressed that

day. Upon examination, Dr. Oruwari noted that plaintiff gave excellent attention to
his appearance, had cooperative behavior, good eye contact, normal speech rate,
coherent, logical, goal-directed process, and a depressed mood.

The doctor

assigned a GAF score of 50, and continued him on the same medications with no
new diagnoses.
13
Error! Main Document Only.Alprazolam belongs to the class of medications known as
benzodiazepines
and
is
used
to
treat
anxiety
and
panic
disorders.
http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a684001.html (last visited on June 28, 2011).
14
Error! Main Document Only.Trazodone is a seratonin modulator prescribed for the treatment of
depression.
It may also be prescribed for the treatment of schizophrenia and anxiety.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009). 

7

On July 27, 2011, James Spence, Ph.D., completed a Psychiatric Review
Technique for plaintiff. (Tr. 262–72). Dr. Spence found that plaintiff had a severe,
recurrent major depressive disorder, bipolar disorder by history, panic disorder,
avoidant personality disorder, and behavioral or physical changes from marijuana
abuse.

Plaintiff had a moderate restriction of daily living activities and moderate

difficulties functioning socially and maintaining concentration, persistence and pace.
Plaintiff had had no repeated episodes of decompensation of an extended duration.
Dr. Spence noted that plaintiff had had only sporadic follow-up treatment from his
in-patient treatment in November 2010. Upon review of plaintiff’s medical records,
Dr. Spence opined that plaintiff retained the capability to perform simple, repetitive
tasks on a regular basis away from the general public.
Also on July 27, 2011, Dr. Spence completed a Mental Residual Functional
Capacity Assessment.

(Tr. 273–75).

Dr. Spence found that plaintiff was not

significantly limited in his abilities to remember locations and work-like procedures
or to understand and remember very short and simple instructions.

Plaintiff was

moderately limited in his ability to understand and remember detailed instructions.
As to his abilities in sustained concentration and persistence, Dr. Spence noted that
plaintiff was moderately limited in his ability to carry out detailed instructions,
maintain attention and concentration for extended periods, or work in coordination
with or proximity to others without being distracted by them.

He was not

significantly limited in his ability to carry out very short and simple instructions,
perform activities within a schedule, sustain an ordinary routine without special
supervision, or make simple work-related decisions.

8

Plaintiff was additionally moderately limited in his ability to complete a
normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods. As to his social interaction abilities, Dr. Spence noted
that plaintiff was moderately limited in his ability to interact appropriately with the
general public, to accept instructions and respond appropriately to criticism from
supervisors, and to get along with coworkers without distracting them or exhibiting
behavioral extremes.

He was not significantly limited in his ability to ask simple

questions or request assistance or maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness.

With regard to plaintiff’s

adaptation abilities, Dr. Spence opined that plaintiff was moderately limited in his
ability to respond appropriately to changes in the work setting, travel in unfamiliar
places or use public transportation, and set realistic goals or make plans
independently of others.

He was not significantly limited in his awareness of

normal hazards and ability to take appropriate precautions.
On August 9, 2011, plaintiff had a consultative physical examination with
Chul Kim, M.D. at Westwood Medical Clinic, Inc.

(Tr. 277–83).

Upon review of

plaintiff’s medical history, Dr. Kim noted that plaintiff had been treated for
hypertension for about two years, began having lower back problems when he fell
off a horse, and had had bipolar disorder for four years. After the accident with the
horse, plaintiff stated that he felt a sharp pain in his lower back running to his right
hip whenever he lifted his 30-pound daughter, sat or drove a vehicle for 30
minutes, stood for an hour, or walked for 20 minutes. Ibuprofen did not help with
the pain.

Plaintiff stated that he had been admitted to a mental hospital three

9

times, including an admission for six days in November 2010 after he attempted
suicide. He said he had attempted suicide a few times in the past and had suicidal
thoughts off and on.

His medications included Lisinopril, Cymbalta, Lamictal,

Xanax,15 cough syrup as needed, and ibuprofen as needed. Physical examination of
plaintiff was normal and his mental state was clear with good memory. Flexion of
his lumbar spine, knee, and straight leg raise caused him lower back pain. He also
reported frequent headaches and problems breathing when he coughed. Plaintiff’s
height and weight were recorded as 6’5’’ and 349 pounds.

Dr. Kim diagnosed

plaintiff with uncontrolled hypertension, chronic lower back pain with probable
degenerative joint disease of the lumbar spine, bipolar disorder, morbid obesity,
and congenital syndactyly16 of the second and third toes on his feet with pain. An
x-ray of plaintiff’s lumbar spine conducted the same day found no evidence of acute
injury or destructive process involving the lumbar spine and questionable slight
narrowing of the L4-L5 disc space. (Tr. 258–86, 318–19).
On August 12, 2011, disability examiner Dawn Horn completed a Physical
Residual Functional Capacity Assessment for plaintiff. (Tr. 75–80). Horn found that
plaintiff could occasionally and frequently lift or carry 10 pounds.

Plaintiff could

stand or walk at least two hours in an eight-hour workday and sit about six hours in
an eight-hour workday. Plaintiff was unlimited in his ability to push and pull. Upon
review of the medical and testimonial evidence, Horn considered plaintiff’s
statements partially credible as they were not fully supported by the objective
findings on file. With respect to postural limitations, Horn found that plaintiff could

15

Error! Main Document Only.Xanax is indicated for the treatment of panic disorder. See Phys.
Desk Ref. 2655–56 (60th ed. 2006).
16
Syndactyly is webbing of the fingers or toes.
http://www.nlm.nih.gov/medlineplus/ency/article/003289.htm (last visited July 30, 2015). 

10

occasionally climb ladders, ropes or scaffolds. Plaintiff had no manipulative, visual
or communicative limitations.

For environmental limitations, plaintiff could have

unlimited exposure to extreme cold, extreme heat, wetness, humidity, noise,
vibration, fumes, odors, dusts, gases and poor ventilation, but should avoid
concentrated exposure to hazards due to his hypertension and obesity.
At his appointment at the Potosi Rural Health Clinic on September 12, 2012
(Tr. 322), a care provider noted that plaintiff had been on the same medications
since a year prior, and they seemed to be helping.

Plaintiff slept fine, was not

depressed, had had no recent manic episodes, and did not have suicidal thoughts.
He still stayed home most of the time.

His mental assessment was normal with

“calm, casual” noted and a GAF score of 60.17

Risperidone18 was added to his

medication regimen. At a follow-up appointment on December 11, 2012 (Tr. 321),
plaintiff stated that adding the Risperidone had controlled his anxiety and paranoia.
His mood was stable and he was sleeping fine.

He was continued on the same

medications, assigned a GAF score of 65,19 and told to return in three months.
III. The ALJ’s Decision
In the decision dated June 10, 2013, the ALJ made the following findings:
1.

Plaintiff has not engaged in substantial gainful activity since June 15,
2011, the application date.

17

Error! Main Document Only.A GAF of 51–60 corresponds with “moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) OR difficulty in social, occupational or
school functioning (e.g., few friends, conflicts with peers or co-workers).” American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 34 (4th
ed. 2000).
18
Risperdal is the brand name for Risperidone and is indicated for the treatment of schizophrenia and
acute manic or mixed episodes associated with bipolar I disorder. See Phys. Desk Ref. 1677 (61st ed.
2007).
19
Error! Main Document Only.A GAF of 61–70 corresponds with “Some mild symptoms . . . OR
some difficulty in . . . social, occupational, or school functioning, . . . but generally functioning pretty
well, has some meaningful interpersonal relationships.” American Psychiatric Association, Diagnostic &
Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 34 (4th ed. 2000). 

11

2.

Plaintiff has the following medically determinable impairments:
obesity, minimal scoliosis of the lumbosacral spine, hypertension
controlled by medication, and infrequent medical attention and
treatment for a presumed bipolar disorder, major depressive disorder,
and/or anxiety disorder not otherwise specified.

3.

Plaintiff does not have an impairment or combination of impairments
that has significantly limited (or is expected to significantly limit) the
ability to perform basic work-related activities for 12 consecutive
months; therefore, plaintiff does not have a severe impairment or
combination of impairments.

4.

Plaintiff has not been under a disability, as defined in the Social
Security Act, since June 15, 2011, the date the application was filed.

(Tr. 9–24).
IV.

Legal Standards

 The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.”

Long v. Chater, 108

F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds 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 decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
 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),

12

(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).

The

Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009).

“Each step in the disability determination entails a separate analysis

and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
 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. Pate-Fires, 564 F.3d at
942. If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning
capacity (>RFC=), which is the most a claimant can do despite her limitations.@
Moore, 572 F.3d at 523 (citing 20 C.F.R. ' 404.1545(a)(1)).

“RFC is an

administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
 In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility.

Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the

13

ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
dosage,

effectiveness,

and

side

effects

of

medication;

(5)

any

functional

restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.” Buckner, 646 F.3d at 558
(quotation and citation omitted). “Although ‘an ALJ may not discount a claimant’s
allegations of disabling pain solely because the objective medical evidence does not
fully support them,’ the ALJ may find that these allegations are not credible ‘if there
are inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421
F.3d 785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must
make express credibility determinations and set forth the inconsistencies in the
record which caused the ALJ to reject the claimant’s complaints.

Singh v. Apfel,

222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir.
1998).
 At step four, the ALJ determines whether claimant can return to his past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove his RFC and establish
that he cannot return to his past relevant work. Moore, 572 F.3d at 523; accord
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
 If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within

14

the national economy.

Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001).

See also 20 C.F.R. § 404.1520(f).
 If the claimant is prevented by his impairment from doing any other work,
the ALJ will find the claimant to be disabled.
V. Discussion
After reviewing the evidence in the record, the ALJ concluded that plaintiff’s
medically determinable impairments were not severe and he thus was not disabled
under the Social Security Administration’s regulations.

Plaintiff alleges that the

ALJ’s determination concerning the lack of a severe physical or mental impairment
is not supported by the substantial evidence of the record. Accordingly, the issue
for review is whether the ALJ erred in terminating the sequential evaluation process
at step two by determining that plaintiff did not have a severe impairment or
combination of impairments.
At the second step of review for determining disability, a plaintiff will not be
found disabled if he does not have medically determinable physical or mental
impairments that are severe.

20 C.F.R. § 416.920(a)(4)(ii).

The claimant bears

the burden of proving the severity of an impairment or combination of impairments.
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).

The standard of proof for

establishing severity “is not onerous . . . but it is also not a toothless standard.” Id.
(internal citation omitted). To qualify as severe, an impairment must “significantly
limit a person’s physical or mental ability to do basic work activities.”
416.921(a).

§

Basic work activities include physical functions such as walking,

standing, or sitting, capacities for seeing, hearing and speaking, understanding and
carrying out simple instructions, use of judgment, responding appropriately to

15

supervisors and co-workers in normal work situations, and dealing with change in
routine work settings. § 416.921(b). “An impairment is not severe if it amounts
only to a slight abnormality that would not significantly limit the claimant’s physical
or mental ability to do basic work activities.” Kirby, 500 F.3d at 707 (citing Bowen
v. Yuckert, 482 U.S. 137, 153 (1987)). “The sequential evaluation process may be
ended at step two when an impairment or combination of impairments would have
no more than a minimal effect on the claimant’s ability to work.”

Simmons v.

Massanari, 264 F.3d 751, 755 (8th Cir. 2001); see Kirby, 500 F.3d at 708
(collecting cases in which the Eighth Circuit has upheld the Commissioner’s finding
that a claimant failed to establish severity).
Considering the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s finding that plaintiff’s physical and mental impairments,
considered individually or in combination, were not severe during the alleged
disability period.

As to plaintiff’s mental impairments of bipolar disorder, major

depressive disorder, and anxiety disorder, the ALJ noted that plaintiff’s psychiatric
hospitalization in November 2010 was associated with his noncompliance with
taking medications for a period of six months prior to his admission. (Tr. 18). He
was noted as doing better when he resumed his medications and had no side
effects from the medications. After his hospitalization, he had only sporadic followup treatment. (Tr. 272). On several occasions, plaintiff was documented as having
run out of his medications when he went lengths of time without scheduling followup appointments with his medical care providers.

The ALJ considered plaintiff’s

failure to follow prescribed treatment without a good reason as a basis for finding
him not disabled. See Edwards v. Barnhart, 314 F.3d 964, 967–68 (8th Cir. 2003)

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(holding that a claimant’s failure to pursue regular medical treatment detracts from
credibility). His most recent treatment notes in the record indicated that plaintiff
was doing better and Risperidone effectively controlled his hallucinations and
paranoia.

His mood was stable, he was sleeping fine, he maintained a calm and

pleasant presence, and he reported no recent anxiety.
In considering the four functional areas for determining the severity of
plaintiff’s mental impairments, the ALJ found that plaintiff had mild or no limitations
in his daily living activities, social functioning, concentration, persistence and pace,
and episodes of decompensation.

The ALJ noted that plaintiff helped take of his

daughter during the day, took care of his own personal care and hygiene, prepared
simple meals, drove, went to the store, could manage a savings account and pay
bills, attended church and watched television. (Tr. 16–18). Some of the physical
and mental abilities and social interaction skills required to perform these activities,
the ALJ noted, are the same as those required to obtain and maintain employment.
The record contained no evidence that plaintiff had experienced any repeat
episodes of decompensation of an extended duration.

See 20 C.F.R. §

404.1520a(d)(1) (“If we rate the degree of your limitation in the first three
functional areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally
conclude that your impairment(s) is not severe . . . .”).
Noting that the GAF scores in plaintiff’s record were of limited evidentiary
value, the ALJ gave the GAF scores little weight. (Tr. 19). The ALJ noted that GAF
scores are subjectively assessed and only reveal snapshots of impaired or improved
behavior.

See Revised Medical Criteria for Evaluating Mental Disorders and

Traumatic Brain Injury, 65 Fed. Reg. 50,746, 50,764–65, 2000 WL 1173632 (Aug.

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21, 2000) (the Social Security Administration stating that the “GAF scale . . . does
not have a direct correlation to the severity requirements in our mental disorders
listings”). Nonetheless, his most recent GAF score was 65, indicating that plaintiff
was “generally functioning pretty well.” Diagnostic & Statistical Manual of Mental
Disorders - Fourth Edition, Text Revision 34 (4th ed. 2000).
Additionally, the ALJ gave little weight to the opinion of the state agency
psychological consultant, Dr. Spence. (Tr. 262–75). The ALJ wrote that Dr. Spence
did not have the benefit of considering additional evidence that was only available
after the reconsideration determination, including subsequent medical evidence and
hearing testimony. Instead, the ALJ gave more weight to the objective details and
chronology of the record.
conservative

treatment,

For example, plaintiff was prescribed routine and

his

psychiatric

hospitalization

was

associated

with

medication noncompliance, he had none or only mild symptoms when he was
medically compliant after his application date, he described no side effects from the
medications, and his most recent treatment notes indicated good improvement.
Based on a complete review of the medical opinions and record evidence, the Court
finds the ALJ’s conclusion that plaintiff’s mental impairments were non-severe is
supported by substantial evidence.
As to plaintiff’s physical impairments, the ALJ found that the record contained
no evidence of any specific or quantifiable impact his obesity had on his functional
limitations.

(Tr. 14–15).

As to plaintiff’s hypertension, the ALJ noted a single

treatment note indicated he had uncontrolled hypertension after the date of his
application, but no other cardiopulmonary symptoms or complications were
described or treated. (Tr. 17, 229, 231, 236–38, 279–80). Finally, as to plaintiff’s

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scoliosis of his lumbar spine, diagnostic imaging from May 1, 2009 and August 9,
2011 did not support the severity of his allegations or a finding of disability.
Reports from x-rays indicated that he had only slight scoliosis and questionable
slight narrowing of a disc space in his lower back.

(Tr. 286, 316).

A radiology

report from August 9, 2011 suggested that if clinically indicated, an MRI
examination from plaintiff’s lumbar spine might be helpful for further evaluation.
(Tr. 285–86, 318–19). However, no treating physician recommended and plaintiff
did not request further evaluation.
Furthermore, plaintiff’s consultative examination with Dr. Kim was generally
unremarkable. (Tr. 277–83). The ALJ noted that, inconsistent with his allegations,
plaintiff was documented as stating at the examination that he was capable of
lifting a 30-pound baby, driving a vehicle for 30 minutes, sitting for 30 minutes,
standing for one hour, and walking for 20 minutes before developing a sharp pain in
the lower back running to the right hip. The ALJ also noted plaintiff’s conduct at the
hearing, at which he was capable of sitting for 40 minutes without getting up and
standing up and walking out of the hearing at its completion without difficulties with
his feet. (Tr. 18); Johnson, 240 F.3d at 1148 (“[An] ALJ’s personal observations of
the claimant’s demeanor during the hearing is completely proper in making
credibility determinations.”).
The ALJ discounted plaintiff’s allegations and testimony as not fully credible,
which plaintiff contends was in error. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984) (“[An ALJ] may not disregard a claimant’s subjective complaints
solely because the objective medical evidence does not fully support them.”). In
his credibility determination of plaintiff, the ALJ cited several substantially

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supported bases for his discount of plaintiff’s allegations.

First, plaintiff’s daily

activities undermined the credibility of plaintiff’s allegations of disabling functional
limitations. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996) (affirming ALJ’s
discount of claimant’s subjective complaints of pain where claimant was able to
care for one of his children on a daily basis, drive a car infrequently, and go grocery
shopping occasionally).
Second, routine, conservative treatment was effective without side effects
when he was compliant with his prescribed medications. E.g., Renstrom v. Astrue,
680 F.3d 1057, 1066 (8th Cir. 2012) (“If an impairment can be controlled by
treatment or medication, it cannot be considered disabling.”) (quoting Brown v.
Astrue, 611 F.3d 941, 955 (8th Cir. 2010)); see also Milam v. Colvin, No. 14-3240,
2015 WL 4491742, at *6 (8th Cir. July 24, 2015) (finding substantial evidence of
claimant’s relatively conservative treatment history and long periods of time
without any treatment supported the ALJ’s discount of a claimant’s subjective
complaints of pain); Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996)
(“[Claimant’s]

complaints

of

disabling

pain

and

functional

limitations

are

inconsistent with her failure to take prescription pain medication or to seek regular
medical treatment for her symptoms.”).
Finally, on multiple occasions at the hearing, at appointments with medical
providers, and in his disability application documents, plaintiff’s allegations
regarding his work history, drug use, pain, medication effects and medical history
were inconsistent with prior statements and past records. (Tr. 16–18); see Polaski,
739 F.2d at 1322 (“Subjective complaints may be discounted if there are
inconsistencies in the evidence as a whole.”); see also Wiese v. Astrue, 552 F.3d

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728, 734 (8th Cir. 2009) (“Indeed, the ALJ wrote nearly four full pages of analysis
regarding the consistency between [plaintiff’s] self-reports contained in the record,
her treating physicians’ notes and assessments, the medical evidence and the
hearing testimony.”); Baldwin v. Barnhart, 349 F.3d 549,

558 (8th Cir. 2003)

(finding that inconsistencies in the plaintiff’s statements in the record regarding
alcohol and drug use supported the ALJ’s decision to discount plaintiff’s credibility
and subjective complaints of pain). Accordingly, substantial evidence in the record
supports the ALJ’s credibility determination based on his consideration of all of the
evidence presented. See Renstrom, 680 F.3d at 1067 (“Because the ALJ gave good
reasons for discounting [plaintiff’s] credibility, we defer to the ALJ’s credibility
findings.”).
The Court finds that sufficient evidence exists that a reasonable person would
find adequate to support the ALJ’s decision, and his decision “falls within the
available zone of choice.” Buckner, 646 F.3d at 556. Thus, the Court is required to
“defer heavily to the findings and conclusions of the Social Security Administration”
and affirm the decision of the Commissioner. Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010).
VI.

Conclusion

For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.

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A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 7th day of March, 2016.

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