Findley v. Colvin

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief requested in Plaintiff's Complaint and Brief in Support of Complaint is DENIED. [Docs. 1, 12, 18.] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge. Signed by Magistrate Judge Nannette A. Baker on 8/18/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

ALICIA FINDLEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:15-CV-126 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Alicia Findley’s application for disability insurance
benefits and supplemental security income (SSI) under the Social Security Act, 42 U.S.C.
§§ 416, 423 et seq. Findley alleged disability due to high blood pressure, bulging discs in the
spine, arthritis, scoliosis, degenerative disc in her neck, depression, anxiety, gastroesophageal
reflux disease (GERD), hiatal hernia, and rotator cuff tendinosis in the left shoulder. (Tr. 216.)
The parties have consented to the exercise of authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 7.] The Court has reviewed the parties’
briefs and the entire administrative record, including the hearing transcripts and the medical
evidence. The Court heard oral argument in this matter on August 18, 2016. For the reasons set
forth below, the Court will affirm the Commissioner’s final decision.
I.

Issues for Review
Findley presents one issue for review. She contends that the administrative law judge

(ALJ) erred in determining her residual functional capacity (RFC), because the ALJ failed to

address her depression separately from her anxiety, failed to find that anxiety and depression
were severe impairments, and improperly evaluated the medical opinion evidence.

The

Commissioner contends that the RFC is supported by substantial evidence in the record as a
whole and the ALJ’s decision should be affirmed.
II.

Standard of Review
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.

2001). This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a contrary
outcome or because the Court would have decided the case differently. Id. If, after reviewing
the record as a whole, the Court finds it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s finding, the Commissioner’s
decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). To
determine whether the ALJ’s final decision is supported by substantial evidence, the Court is
required to review the administrative record as a whole to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
claimant;
(3) The medical evidence given by the claimant’s treating
physician;

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(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s
physical impairment;
(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

Discussion
A.

Residual Functional Capacity Determination

Findley contends that the ALJ’s RFC determination was not supported by substantial
evidence because he erred in evaluating whether her mental impairments were severe
impairments and in evaluating the medical opinion evidence.
The ALJ found that Findley had the following severe impairments: degenerative disc
disease of the lumbar and cervical regions of the spine, mild scoliosis, and tendonitis of her left
shoulder.

(Tr. 20.)

The RFC is defined as what the claimant can do despite his or her

limitations, and includes an assessment of physical abilities and mental impairments. 20 C.F.R.
§§ 404.1545(a), 416.945(a). The RFC is a function-by-function assessment of an individual’s
ability to do work related activities on a regular and continuing basis. 1 SSR 96-8p, 1996 WL
374184, at *1 (July 2, 1996). The ALJ determined that Findley had the RFC to perform light
work that only requires occasionally reaching overhead with her left arm. (Tr. 22.) Light work
is defined as work that involves “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). Jobs

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A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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considered light work require a good deal of walking or standing or if it involves sitting most of
the time with some pushing and pulling of arm or leg controls. Id.
It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and the claimant’s own
descriptions of his limitations. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). An
RFC determination made by an ALJ will be upheld if it is supported by substantial evidence in
the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). “[T]he ALJ is not qualified
to give a medical opinion but may rely on medical evidence in the record.” Wilcockson v.
Astrue, 540 F.3d 878, 881 (8th Cir. 2008). In making a disability determination, the ALJ shall
“always consider the medical opinions in the case record together with the rest of the relevant
evidence in the record.” 20 C.F.R. §§ 404.1527(b), 416.927(b); see also Heino v. Astrue, 578
F.3d 873, 879 (8th Cir. 2009).
1.

Severity of Mental Impairments

After the ALJ has determined that a claimant is not engaged in substantial gainful
activity, the ALJ then determines whether the claimant has a severe impairment or combination
of impairments that has or is expected to last twelve months or will result in death. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(i)-(ii), 416.909, 416.920(a)(4)(i-ii).

A physical or mental

impairment must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by the claimant’s statement of symptoms. 20 C.F.R. §§ 404.1508,
416.908. To be considered severe, an impairment must significantly limit a claimant’s ability to
do basic work activities. See 20 C.F.R §§ 404.1520(c), 416.920(c). “Step two [of the five-step]
evaluation states that a claimant is not disabled if his impairments are not ‘severe.” Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing Simmons v. Massanari, 264 F.3d 751, 754 (8th

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Cir. 2001). “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.” Id. at
707. “If the impairment would have no more than a minimal effect on the claimant's ability to
work, then it does not satisfy the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d
1040, 1043). “It is the claimant’s burden to establish that his impairment or combination of
impairments are severe. Kirby, 500 F.3d at 707 (citing Mittlestedt v. Apfel, 204 F.3d 847, 852
(8th Cir. 2000)). “Severity is not an onerous requirement for the claimant to meet, . . . but it is
also not a toothless standard.” Kirby, 500 F.3d at 708.
In evaluating the severity of mental impairments, the Social Security Administration uses
a special technique. 20 C.F.R. §§ 404.1520a, 416.920a. The special technique analysis requires
(1) determination

of

whether

claimant

has

a

medically

determinable

impairment,

(2) identification of the symptoms, signs, and laboratory findings that substantiate the presence
of the impairment, and then (3) rating the degree of functional limitation resulting from the
impairment. 20 C.F.R. §§ 404.1520a(b), 416.920a(b). After the degree of functional limitation
from the impairment is rated, the severity of the mental impairment is determined. 20 C.F.R.
§§ 404.1520a(d), 416.920a(d).
In this case, Findley alleges that the ALJ should have found that her anxiety and
depression were severe impairments. The ALJ’s decision only mentions that he found her
anxiety disorder to be non-severe. The Commissioner responds that although Findley was
diagnosed with depression, progress notes from her mental health treatment indicate that her
symptoms of depression and anxiety were treated together and interrelated; therefore, if the ALJ
erred in failing to separately discuss her depression symptoms, it was a harmless error.

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Based on a careful review of the administrative record and the ALJ’s decision, the Court
finds that the ALJ did not err in finding that Findley did not have any severe mental impairments.
The medical record does not support that her mental impairments significantly limit her ability to
do basic work activities. Even if the ALJ should have specifically mentioned anxiety and
depression as separate mental impairments, the record does not support a finding that these
impairments were severe. See Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (to show that an
error was not harmless, a claimant must provide some indication that the ALJ would have
decided the case differently if the error had not occurred). Her mental status examinations were
substantially normal and she responded well to her medication. Further, her activities of daily
living indicate that her mental impairments were not severe as Findley alleged. Finally, the
evidence failed to support including limitations regarding her mental impairments in the RFC.
Therefore, the Court finds that the ALJ did not err in the evaluation regarding the severity of her
mental impairments.
2.

Medical Opinion Evidence

Next, Findley contends that the ALJ erred in his evaluation of the medical opinions in the
record. All medical opinions, whether by treating or consultative examiners are weighed based
on (1) whether the provider examined the claimant; (2) whether the provider is a treating source;
(3) length of treatment relationship and frequency of examination, including nature and extent of
the treatment relationship; (4) supportability of opinion with medical signs, laboratory findings,
and explanation; (5) consistency with the record as a whole; (6) specialization; and (7) other
factors which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c).
Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s

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opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. 20 C.F.R. §§ 404.1527(c), 416.927(c); SSR 96-2p; see also Hacker, 459 F.3d at
937. “Whether the ALJ grants a treating physician’s opinion substantial or little weight, the
regulations provide that the ALJ must ‘always give good reasons’ for the particular weight given
to a treating physician’s evaluation.” Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
Findley asserts that the ALJ should have given less weight to Dr. Scott Brandhorst’s
opinion and more weight to the opinions of nurse practitioner Kathleen Lasar and Dr. Navid
Siddiqui.
a.

Dr. Scott Brandhorst

“Administrative law judges are not bound by any findings made by State agency medical
or psychological consultants or other program physicians or psychologists.”

20 C.F.R.

§§ 404.1527(e)(2)(i), 416.927(e)(2)(i). “State agency medical and psychological consultants and
other program physicians, psychologists, and other medical specialists are highly qualified
physicians, psychologists, and other medical specialists who are also experts in Social Security
disability evaluation.”

20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i).

“Therefore,

administrative law judges must consider findings and other opinions of State agency medical and
psychological consultants and other program physicians, psychologists, and other medical
specialists as opinion evidence,” except for the determination of disability.

20 C.F.R.

§§ 404.1512(b)(8), 404.1527(e)(2)(i), 416.912(b)(1)(viii), 416.927(e)(2)(i). Their opinions are
evaluated under the standards outlined in 20 C.F.R. §§ 404.1527(c), 416.927(c).

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Opinions of non-examining sources are generally given less weight than those of
examining sources. Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010). When evaluating the
non-examining sources opinion, the ALJ should evaluate the degree to which the opinion
considers all of the pertinent evidence in the claim, including the opinions of treating and other
examining sources. Wildman, 596 F.3d at 967. “The opinions of non-treating practitioners who
have attempted to evaluate the claimant without examination do not normally constitute
substantial evidence on the record as a whole.” Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir.
2003).
In this case, the ALJ gave considerable weight to the consultative psychologist Scott
Brandhorst, who reviewed Findley’s medical records. (Tr. 24.) The ALJ gave the opinion
considerable weight because, Dr. Brandhorst was familiar with the disability determination
process and regulations, as a psychologist, he had specialized training and expertise, his opinion
was based on a comprehensive view of the record, and his opinion was accompanied by a
detailed narrative. (Tr. 24.) Findley asserts that the ALJ should have given this opinion less
weight, because most of her medical treatment for her mental impairments occurred after his
evaluation, which was made on September 18, 2012. The Court agrees that Dr. Brandhorst’s
evaluation was not as comprehensive as the ALJ stated in his opinion. But, an evaluation of Dr.
Brandhorst’s opinion with all of the medical evidence, before and after his evaluation, supports
Dr. Brandhorst’s and the ALJ’s ultimate conclusion that Findley does not suffer from a severe
mental impairment.

Therefore, there was no error in granting considerable weight to Dr.

Brandhorst’s opinion.

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b.

Kathleen Lasar, Nurse Practitioner

Although not addressed at oral argument, Findley contends in her brief that the ALJ erred
in affording little weight to treating source Kathleen Lasar, a board certified nurse practitioner.
Social Security separates information sources into two main
groups: acceptable medical sources and other sources. It
then divides other sources into two groups: medical sources
and non-medical sources. Acceptable medical sources
include licensed physicians (medical or osteopathic doctors)
and licensed or certified psychologists. According to Social
Security regulations, there are three major distinctions
between acceptable medical sources and the others: (1) Only
acceptable medical sources can provide evidence to establish
the existence of a medically determinable impairment,
(2) only acceptable medical sources can provide medical
opinions, and (3) only acceptable medical sources can be
considered treating sources,
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (emphasis in original) (internal citations
omitted). Medical sources include nurse practitioners, physician assistants, licensed clinical
social workers, naturopaths, chiropractors, audiologists, and therapists.”

20 C.F.R.

§§ 404.1513(d)(1), 416.913(d). “Information from these other sources cannot establish the
existence of a medically determinable impairment. Instead, there must be evidence from an
“acceptable medical source” for this purpose.” SSR 06-03P, 2006 WL 2329939. “[I]nformation
from such other sources, [however], may be based on special knowledge of the individual and
may provide insight into the severity of the impairment(s) and how it affects the individual's
ability to function. Id.; 20 C.F.R. §§ 404.1513(d), 416.913(d).
The ALJ stated that Ms. Lasar’s opinion was given little weight, because she is not an
acceptable medical source and her opinion that Findley had a variety of moderate and marked
limitations were inconsistent with her treatment notes. (Tr. 25.) The Court agrees. Although the

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ALJ is required to consider Ms. Lasar’s opinion, she provided no support for the significant
limitations contained in her Mental Medical Source Statement, which found no support in the
treatment notes. (Tr. 548-49.) The ALJ adequately explained how the record did not support
Ms. Lasar’s opinion with citations to the record. Therefore, the ALJ did not err in granting little
weight to this opinion.
c.

Dr. Navid Siddiqui

Findley also argued that the ALJ erred in granting little weight to the Medical Source
Statements of treating physician Dr. Navid Siddiqui. (Tr. 25.) The ALJ gave Dr. Siddiqui’s
opinion little weight, because the limitations in his opinion were not supported by evidence in the
record and were presented in a conclusory format. (Tr. 25.) The Court finds no error in the
ALJ’s assessment of Dr. Siddiqui’s opinion. Dr. Siddiqui’s limitations regarding the physical
strength factors, some of the postural and manipulative factors, and environmental factors were
much more substantial than demonstrated by the medical evidence and Findley’s activities of
daily living. Therefore, the Court finds that the ALJ’s RFC determination was supported by
substantial evidence in the record as a whole.
IV.

Conclusion
A review of the record as a whole demonstrates that Findley had some restrictions in her

functioning and ability to perform work related activities during the relevant time period,
however, she did not carry her burden to prove a more restrictive RFC determination. See
Pearsall, 274 F.3d at 1217 (it is the claimant’s burden, not the Social Security Commissioner’s
burden, to prove the claimant’s RFC). Therefore, the Commissioner’s decision will be affirmed.
Accordingly,

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IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 12, 18.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
Dated this 18th day of August, 2016.

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

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