Garner v. Colvin
Filing
22
MEMORANDUM AND ORDER: Thus, the ALJ's decision finding Garner not disabled is supported by substantial evidence. Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/28/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JACOB GARNER,
Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
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) Case No. 1:15 CV215 ACL
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MEMORANDUM AND ORDER
Plaintiff Jacob Garner brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Garner’s severe impairments, he
was not disabled as he had the residual functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be affirmed.
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
Page 1 of 25
I. Procedural History
Garner filed his applications for DIB and SSI on March 26, 2013. (Tr. 164-76.) He
alleged that he became disabled on October 30, 2008, due to bipolar disorder, obesity, depression,
anxiety and panic attacks, memory issues, schizoaffective disorder, paranoia, high blood pressure,
hypertension, shortness of breath, insomnia, and acid reflux. (Tr. 164-76, 213.) Garner’s claims
were denied initially. (Tr. 107-08.) Following an administrative hearing, Garner’s claims were
denied in a written opinion by an ALJ, dated June 20, 2014. (Tr. 11-27.) Garner then filed a
request for review of the ALJ’s decision with the Appeals Council of the Social Security
Administration (SSA), which was denied on September 25, 2015. (Tr. 7, 1-5.) Thus, the
decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. '' 404.981,
416.1481.
In the instant action, Garner first claims that the ALJ “failed to properly weigh the opinion
of the treating physician in accord with SSR 96-2p because the ALJ failed to give good reasons for
giving little weight to the well-supported opinion of Dr. Caruso.” (Doc. 15 at 9.) Garner also
argues that the ALJ erred by “failing to provide a proper credibility analysis as required by SSR
97-7p in that the ALJ failed to base the analysis on the substantial evidence of record.” Id. at 16.
II. The ALJ=s Determination
The ALJ first addressed the fact that Garner filed prior applications for benefits under
Titles II and XVI on January 13, 2010, alleging a disability onset date of October 30, 2008. (Tr.
14.) These claims were denied initially, and were denied by an ALJ on March 1, 2012, after a
hearing was held. Id. The Appeals Council denied Garner’s request for review on March 2,
2013. Id. The ALJ noted that Garner was alleging the same onset date of disability that he had
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alleged in his prior applications—October 30, 2008. (Tr. 15.) The ALJ found that there was no
basis for reopening the prior applications, and that the prior decision was final and binding.2 Id.
He therefore only addressed the issue of whether Garner became disabled after March 1, 2012, the
date of the prior unfavorable decision. Id.
The ALJ stated that Garner met the insured status requirements of the Social Security Act
through September 30, 2013.3 (Tr. 17.) The ALJ found that Garner had not engaged in
substantial gainful activity since his alleged onset date of October 30, 2008. Id.
In addition, the ALJ concluded that Garner had the following severe impairments:
schizoaffective disorder, bipolar disorder, depression, anxiety, hypertension, and morbid obesity.
Id. The ALJ found that Garner did not have an impairment or combination of impairments that
meets or equals in severity the requirements of any impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 18.)
As to Garner’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), meaning the claimant is able to lift and carry 20 pounds
occasionally and 10 pounds frequently, stand and/or walk 6 hours in
2
Absent a colorable constitutional claim, the Act does not authorize judicial review of a decision
by the Commissioner applying res judicata or a decision of the Commissioner refusing to reopen a
prior claim. See Boock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995); Brown v. Sullivan, 932 F.2d
1243, 1245–46 (8th Cir. 1991). No such constitutional claim was presented here and the ALJ’s
decision refusing to reopen the prior applications is not reviewable. Thus, the relevant time
period for consideration of Garner’s claims begins on March 2, 2012, the date after the last final
denial of Garner’s previous claims.
3
To be entitled to DIB under Title II, Garner must establish that he was disabled prior to the
expiration of his insured status on September 30, 2013. See 20 C.F.R. 404.130. As such, the
relevant time period under consideration for Garner’s Title II claim is March 2, 2012 through
September 30, 2013. To be entitled to SSI under Title XVI, he must show that he was disabled
while his application was pending. See 42 U.S.C. 1382c; 20 C.F.R. ' 416.330 and 416.335.
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an 8-hour workday, and sit 6 hours in an 8-hour workday. The
claimant is limited to performing simple, routine, and repetitive
tasks that would not involve fast-paced production work such as an
assembly line worker. The claimant is limited to only occasional
contact with the public and co-workers and limited to tasks with no
more than occasional changes in a routine work setting. In
addition, the claimant must avoid work hazards such as exposure to
unprotected heights and dangerous moving machinery.
(Tr. 19.)
The ALJ found that Garner’s allegations regarding his limitations were not entirely
credible. (Tr. 21.) In determining Garner’s RFC, the ALJ indicated that he was assigning “little
weight” to the opinion of treating psychiatrist Dawn Caruso, M.D. (Tr. 25.) The ALJ assigned
“significant weight” to the opinion of examining psychologist Georgette Johnson, Psy.D; and
“considerable weight” to the opinion of state agency medical consultant Keith Allen, Ph.D. Id.
The ALJ also noted that he was giving “little weight” to the GAF score of 41-50 assessed by
Courtney Johnson, M.D.4 Id.
The ALJ further found that Garner is unable to perform any past relevant work. Id. The
ALJ noted that a vocational expert testified that Garner could perform jobs existing in significant
numbers in the national economy, such as hand washer, ejection molder, and housekeeper/maid.
(Tr. 26.) The ALJ therefore concluded that Garner has not been under a disability, as defined in
the Social Security Act, from October 30, 2008, through the date of the decision. (Tr. 27.)
4
Garner does not challenge this finding.
Page 4 of 25
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits filed on March 25, 2013, the claimant is not
disabled as defined in sections 216(i) and 223(d) of the Social
Security Act.
Based on the application for supplemental security income filed on
March 25, 2013, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act.
Id.
III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a
preponderance of the evidence, but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial
evidence test,” however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal
quotation marks and citation omitted). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1.
The credibility findings made by the ALJ.
2.
The plaintiff’s vocational factors.
3.
The medical evidence from treating and consulting physicians.
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4.
The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
5.
Any corroboration by third parties of the plaintiff’s
impairments.
6.
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant’s impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner’s findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003).
III.B. Determination of Disability
A disability is defined as the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
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has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any other kind of substantial gainful
work which exists … in significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “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; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291
(1987). “The sequential evaluation process may be terminated at step two only when the
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claimant’s impairment or combination of impairments would have no more than a minimal impact
on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation
marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
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Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
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limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. '' 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. ''
404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
not meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20
C.F.R. '' 404.1520a(c)(3), 416.920a(c)(3).
IV. Discussion
Garner argues that the ALJ erred in evaluating the opinion of treating psychiatrist Dr.
Caruso, and in assessing the credibility of Garner’s subjective complaints. The undersigned will
discuss these claims in turn, beginning with the ALJ’s credibility analysis.5
1.
Credibility Analysis
Garner testified that he was unable to work because he experiences almost constant
auditory hallucinations, and as a result has difficulty concentrating and being around people. (Tr.
21, 39.) The ALJ found that Garner’s allegations were not entirely credible. Garner contends
that the ALJ’s credibility determination is not supported by substantial evidence.
In assessing a plaintiff’s subjective complaints, an ALJ is required to examine (1) the
claimant’s daily activities; (2) the duration, frequency and intensity of pain; (3) dosage,
effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5)
5
Garner also alleged disability based on physical impairments and the ALJ found that Garner’s
hypertension and morbid obesity were severe at step two. (Tr. 17.) Because Garner does not
challenge the ALJ’s findings regarding his physical impairments, the undersigned will not discuss
those findings.
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functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). An ALJ may
disbelieve a claimant’s subjective reports due to inherent inconsistencies or other circumstances.
Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007). “If an ALJ explicitly discredits the
claimant’s testimony and gives good reason for doing so, the Court should defer to the ALJ’s
credibility determination.” See Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003).
The ALJ here identified many reasons to support his findings concerning Garner’s subjective
complaints, including his poor work history, his daily activities, the effectiveness of his
medications, medical evidence documenting improvement, and suggestions in the record that
Garner was motivated by secondary gain. (Tr. 21–25.)
The ALJ first noted that there was no change in Garner’s medical condition that occurred
on his alleged onset of disability date. (Tr. 21.) Rather, Garner reported that he was let go by his
last employer because “there were too many kitchen employees and employer did not have enough
money to pay all the employees.” (Tr. 189.) See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.
2005) (“Courts have found it relevant to credibility when a claimant leaves work for reasons other
than her medical condition.”).
The ALJ found that Garner’s poor work record “does nothing to enhance the claimant’s
credibility as a person who was ever well motivated to work.” (Tr. 21.) Garner’s work history
report reveals he worked only sporadically prior to his alleged onset date. (Tr. 198.) The ALJ
properly weighed Garner’s poor work history. See Buckner v. Astrue, 646 F.3d 549, 556–58 (8th
Cir. 2011) (Buckner’s sporadic work history prior to his alleged disability date indicated that he
was not strongly motivated to engage in productive activity, which weighed against his
credibility).
The ALJ also noted that Garner worked part-time after his alleged onset of
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disability—from December 1, 2008 to December 15, 2008, earning $1,293.90; and from June 28,
2010, to July 10, 2010 (twelve hours total), earning $41.69. (Tr. 17.) Garner argues that his
ability to work part-time is not inconsistent with his allegation of disability. Despite Garner’s
argument, the ALJ properly considered Garner’s part-time work during the relevant period as but
one of several factors that detracted from his subjective allegations of symptoms precluding all
work.
See Goff, 421 F.3d at 792 (the ALJ properly considered, as one factor detracting from the
claimant's credibility, the fact that she worked part-time as a kitchen aide throughout the time she
claimed she was disabled).
The ALJ next discussed Garner’s daily activities. He noted that Garner was able to take
care of his personal needs, perform household chores, prepare simple meals, shop online, drive,
play video games, use the computer, watch television, and read. (Tr. 21, 44-46.) The ALJ stated
that, to the extent Garner’s daily activities are restricted, they appear restricted mainly as a matter
of choice, rather than any apparent medical prescription. (Tr. 21.) The ALJ did not err in finding
Garner’s daily activities inconsistent with his allegations of disabling symptoms, including
difficulty concentrating. See McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (ALJ properly
discounted plaintiff’s credibility where, among other factors, plaintiff “was not unduly restricted
in his daily activities, which included the ability to perform some cooking, tak[ing] care of his
dogs, us[ing] a computer, driv[ing] with a neck brace, and shop[ping] for groceries with the use of
an electric cart”).
The ALJ stated that no treating physician placed any specific long-term work-related
restrictions on Garner’s activities or expressed the opinion that he was disabled. (Tr. 21.)
The
lack of significant limitations set out by treating and examining physicians is relevant to a
determination of disability. See Goff, 421 F.3d at 792. Garner argues that this statement is
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incorrect, as Dr. Caruso found that Garner had many marked and extreme limitations in a Medical
Source Statement-Mental (“MSS”). (Tr. 471-72.) Dr. Caruso did find such limitations in her
source statement she completed in April 2014, more than a year after she last treated Garner. The
ALJ discussed the MSS later in his opinion, and found that it was inconsistent with Dr. Caruso’s
earlier treatment notes. No other treating physician imposed any work-related limitations, or
found that Garner was unable to work. As Defendant points out, psychologist Georgette Johnson
recommended Garner pursue vocational rehabilitation after an August 30, 2012 evaluation,
suggesting Garner’s mental impairments did not preclude all work activity. (Tr. 269.) In sum,
although the ALJ’s statement was not completely accurate in light of Dr. Caruso’s opinion, it does
not constitute reversible error since the ALJ fully evaluated and discredited Dr. Caruso’s opinion.
The ALJ next found that Garner’s medications were “generally effective when taken as
prescribed.” (Tr. 21.) Evidence of effective medication resulting in relief may diminish the
credibility of a claimant's complaints. See Rose v. Apfel, 181 F.3d 943, 944 (8th Cir. 1999).
Garner argues that his medications were not generally effective because his medical providers
made frequent adjustments to his medications. The record nonetheless supports the ALJ’s
findings that Garner’s psychiatric symptoms improved with medication. For example, in January
2013, Garner reported that his auditory hallucinations had really diminished with medication, and
Dr. Caruso noted he was tolerating his medications well. (Tr. 278.) The next month, Dr. Caruso
noted that Garner was “fairly stable,” and that her “biggest concern is the continued weight gain.”
(Tr. 276.) Garner also reported a decrease in his auditory hallucinations in March 2013 (Tr. 273),
and in January 2014 (Tr. 417.)
With regard to side effects, the ALJ acknowledged Garner’s hearing testimony that his
medications make him sleepy. (Tr. 21, 42.) The ALJ, however, found that there was no
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evidence that his medications impose significant side effects. (Tr. 21.) This finding is supported
by the record, which reveals adjustments were made to medications any time Garner reported side
effects. Garner typically complained of only minor side effects. For example, in November
2012, Garner reported that he had stopped taking one of his psychotropic medications simply
because it was not cherry flavored. (Tr. 284.) The presence or absence of side effects from
medications is a proper Polaski factor. See Polaski, 739 F.2d at 1322. The ALJ’s finding that
Garner’s medications helped his symptoms and did not result in significant side effects is
supported by the record.
Finally, the ALJ considered that Garner began seeing Dr. Caruso on June 5, 2012, because
he did not receive disability benefits based on the reports of his previous psychiatrist, Dr. Khot.
(Tr. 23, 298.) Garner reported that his attorney told him to reapply with a new psychiatrist. Id.
Garner stated that he had been trying to get disability for three years, and that he planned to marry
his girlfriend once this was obtained. Id. Dr. Caruso indicated that she could not accurately
diagnose Garner because she was not sure how truthful he was being, and he seemed to “have a
large secondary gain in getting disability.” (Tr. 299.) When considering a claimant’s credibility,
an ALJ may properly consider that the claimant appeared to be motivated to qualify for disability
benefits. See Eichelberger, 390 F.3d at 590 (8th Cir. 2004) (“[T]he ALJ found that Eichelberger
had objectively determinable impairments, but also noted that her incentive to work might be
inhibited by her long-term disability check of $1,700 per month.”) (citing Gaddis v. Chater, 76
F.3d 893, 896 (8th Cir. 1996) (allowing an ALJ to judge credibility based on a strong element of
secondary gain). Thus, the ALJ properly considered Garner’s statements to Dr. Caruso showing
his motivation to qualify for benefits.
The ALJ thoroughly explained his findings and the inconsistencies in the record upon
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which he based the credibility determination. Because the ALJ pointed to substantial evidence in
the record supporting his decision to discount Garner’s subjective allegations, the Court defers to
the ALJ’s credibility finding. See e.g., Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
2.
Dr. Caruso’s Opinion
Garner next argues that the ALJ erred in evaluating the opinion of treating psychiatrist Dr.
Caruso. As previously noted, Dr. Caruso completed a MSS on April 9, 2014. (Tr. 471-72.) Dr.
Caruso expressed the opinion that Garner was extremely limited in the following areas: ability to
understand and remember detailed instructions, carry out detailed instructions, perform activities
within a schedule and maintain regular attendance, work in coordination with or proximity to
others without being distracted by them, complete a normal workday and workweek without
interruption from psychologically based symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods, interact appropriately with the general public,
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness,
respond appropriately to changes in the work setting, and travel in unfamiliar places or use public
transportation. (Tr. 471-72.) Dr. Caruso found that Garner was markedly limited in the
following areas: ability to remember locations and work-like procedures, understand and
remember very short and simple instructions, carry out very short and simple instructions,
maintain attention and concentration for extended periods, sustain an ordinary routine without
special supervision, make simple work related decisions, ask simple questions or request
assistance, accept instructions and respond appropriately to criticism from supervisors, get along
with coworkers or peers without distracting them or exhibiting behavioral extremes, be aware of
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normal hazards and take appropriate precautions, and set realistic goals or make plans
independently of others. Id.
“‘It is the ALJ’s function to resolve conflicts among the various treating and examining
physicians.” Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v.
Barnhart, 421 F.3d 745, 749–50 (8th Cir. 2005) (internal marks omitted)). Opinions from
medical sources who have treated a claimant typically receive more weight than opinions from
one-time examiners or non-examining sources. See 20 C.F.R. § 416.927(c)(1)–(2). However,
the rule is not absolute; a treating physician’s opinion may be disregarded in favor of other
opinions if it does not find support in the record. See Casey, 503 F.3d at 692. The treating
physician’s opinion should be given controlling weight when it is supported by medically
acceptable laboratory and diagnostic techniques and it must be consistent with other substantial
evidence in the case record. Hacker v. Barnhart, 459 F.3d 935, 937 (8th Cir. 2006). See also 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (listing “[s]upportability” as a factor to be considered
when weighing medical opinions). Inconsistencies may diminish or eliminate weight given to
opinions. Hacker, 459 F.3d at 937. See also Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir.
2015) (holding that a treating physician’s opinion “may have ‘limited weight if it provides
conclusory statements only, or inconsistent with the record’”) (quoting Samons v. Astrue, 497 F.3d
813, 818 (8th Cir. 2007)). An ALJ “may discount or even disregard the opinion ... where other
medical assessments are supported by better or more thorough medical evidence, or where a
treating physician renders inconsistent opinions that undermine the credibility of such opinions.”
Id. (quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)).
If an ALJ declines to ascribe controlling weight to the treating physician’s opinion, she
must consider the following factors in determining the appropriate weight: length and frequency of
Page 16 of 25
the treatment relationship; nature and extent of the treatment relationship; evidence provided by
the source in support of the opinion; consistency of the opinion with the record as a whole; and the
source’s level of specialization. 20 C.F.R. §§ 404.1527(c); 416.927(c). Whether the ALJ grants
the treating physician’s opinion substantial or little weight, “[t]he regulations require that the ALJ
‘always give good reasons’ for the weight afforded to a treating physician’s evaluation.” Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005). “Failure to provide good reasons for discrediting a
treating physician’s opinion is a ground for remand.” Reed v. Barnhart, 399 F. Supp.2d 1187,
1194 (E.D. Mo. 2004).
The ALJ stated that he was assigning “little weight” to the MSS of Dr. Caruso because it
was “a product of a pre-printed form questionnaire solicited by claimant’s attorney and fails to
articulate the basis of the limitations indicated and is inconsistent with this physician’s own
treatment records that note a GAF score of 656 on June 5, 2012, which denotes mild limitations in
social and occupational functioning.” (Tr. 25.) The ALJ further noted that Dr. Caruso indicated
on February 19, 2013 that Garner’s “symptoms are fairly stable on his psychotropic regimen.” Id.
The ALJ determined that Dr. Caruso’s opinions in the April 2014 MSS were not entitled to
controlling weight because her opinions were inconsistent with her own clinical treatment notes.
“It is permissible for an ALJ to discount an opinion of a treating physician that is inconsistent with
the physician’s clinical treatment notes.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
(rejecting challenge to lack of weight given treating physician’s opinion where the physician
renders inconsistent opinions that undermine the credibility of such opinions).; see also Clevenger
6
A GAF score of 61 to 70 denotes “[s]ome mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has some meaningful
interpersonal relationships.” See American Psychiatric Ass’n., Diagnostic and Statistical Manual
of Mental Disorders 34 (Text Revision 4th ed. 2000) (“DSM IV–TR”).
Page 17 of 25
v. S.S.A., 567 F.3d 971, 975 (8th Cir. 2009) (affirming ALJ’s decision not to follow opinion of
treating physician that was not corroborated by treatment notes).
The ALJ acknowledged that Dr. Caruso was Garner’s treating psychiatrist beginning on
June 5, 2012. (Tr. 23.) The ALJ discussed Dr. Caruso’s treatment notes, which show she treated
Garner on twelve occasions from June 2012 to March 2013. (Tr. 273-99.) Dr. Caruso’s
treatment notes, which are discussed below, support the ALJ’s finding.
As previously noted, Garner began seeing Dr. Caruso because his previous psychiatrist’s
reports were not favorable to his disability claims. (Tr. 298.) At his initial visit, Dr. Caruso
noted that Garner had been hospitalized at Southeast Hospital on several occasions in the past,7
and had been seeing Dr. Khot at Community Counseling Center. Id. Garner complained of
auditory hallucinations, which were present all the time and talk to him in a negative way. Id.
He also reported panic attacks and irritability. Id. Garner indicated he was receiving Invega8
injections, which had been helpful for the paranoia, but had caused him to gain one hundred
pounds. Id. Garner then spent “a large portion” of his time with Dr. Caruso discussing his
application for disability benefits. Id. Upon mental status examination, Garner was pleasant,
cooperative, exhibited good eye contact, was calm, was accompanied by his girlfriend, his speech
rate and intonation were normal, his affect was euthymic, he was logical, he denied suicidal or
homicidal ideations, and reported auditory hallucinations and paranoid delusions. (Tr. 299.) Dr.
Caruso assessed a GAF score of 65 and indicated that she could not accurately diagnose Garner
7
The ALJ discussed these three hospitalizations—in August 2008 and April and May of
2010—due to psychotic symptoms and exhibiting bizarre behavior. The undersigned has
reviewed these records. Because these hospitalizations occurred prior to the relevant period, the
records will not be discussed in detail herein.
8
Invega is an antipsychotic drug indicated for the treatment of mental disorders such as
schizoaffective disorder. See WebMD, http:// www.webmd.com/drugs (last visited February 28,
2017).
Page 18 of 25
without his records. Id. She also referred him to Georgette Johnson, Ph.D. for psychological
testing. Id.
On June 20, 2012, Garner reported that he was still depressed and was still experiencing
auditory hallucinations. (Tr. 296.) Upon examination, Garner’s affect was dysphoric, his
perception was good, his thought process was linear and goal directed, his thought content was
logical, his memory was intact, his insight and judgment were fair, and his attention span and
concentration were good. Id. Dr. Caruso discontinued the Invega and started Garner on new
medications that were less likely to cause weight gain. Id. On August 8, 2012, Garner reported
that he was doing better with the auditory hallucinations. (Tr. 292.) He complained of
irritability and lack of energy or motivation. Id. Garner reported that he smoked two packages
of cigarettes a day. Id. Dr. Caruso discussed gastric bypass surgery given Garner’s morbid
obesity. Id. Dr. Caruso indicated that she had received Garner’s records from Dr. Khot, which
revealed an initial diagnosis of bipolar disorder but a subsequent change in diagnosis to
schizoaffective disorder. Id. Upon examination, Garner was pleasant, cooperative, calm,
exhibited good eye contact, his speech was normal, his affect was euthymic, his thought content
and process were normal, he reported no delusions or hallucinations, and his judgment and insight
were fair. Id. Dr. Caruso diagnosed Garner with schizoaffective disorder and adjusted his
medications. Id. On September 10, 2012, Garner reported that his sleep was better, but he
continued to hear voices in the third person. (Tr. 290.) He indicated that he did okay when he
was alone, but had difficulty when he was around people. Id. Garner also complained that he
had no energy, but indicated that he was still smoking two packages of cigarettes a day and was not
exercising. Id. Upon examination, Dr. Caruso’s findings remained unchanged, except that she
described his judgment and insight as “good.” Id. Dr. Caruso adjusted Garner’s medications,
Page 19 of 25
and counseled him to lose weight and stop smoking “to feel better physically and mentally.” Id.
On October 9, 2012, Garner reported that he was still experiencing auditory hallucinations. (Tr.
288.) He indicated that he was still smoking, and that he had recently gone to the emergency
room due to chest pain that radiated down his left arm but was told it was merely muscle pain. Id.
Garner’s girlfriend reported that Garner was a “hypochondriac.” Id. Dr. Caruso’s findings on
mental examination remained unchanged. Id. She adjusted Garner’s medications, encouraged
him to lose weight and stop smoking, and suggested he obtain a sleep study given his morbid
obesity. Id. Dr. Caruso stated that improving his sleep will have an impact on his mental status
if sleep apnea is occurring. Id. On November 6, 2012, Garner reported minimal improvement
with a medication change to Saphris.9 (Tr. 286.) He indicated that he gained back nine pounds
he had lost, but admitted it was because he was choosing to eat poorly and was not exercising. Id.
Dr. Caruso increased the dosage of the Saphris. Id. On December 4, 2012, Garner reported that
he had stopped taking the Saphris because the higher dosage was note cherry flavored. (Tr. 284.)
Garner continued to gain weight and was over 400 pounds. Id. Upon examination, Garner was
pleasant, cooperative, calm, exhibited good eye contact, his speech was normal, his affect was
dysphoric, his thought content and process were normal, he reported auditory hallucinations, he
denied suicidal or homicidal ideation, and his judgment and insight were fair. Id. Dr. Caruso
started Garner on Fanapt,10 and stated that she was “very concerned” about Garner’s weight. Id.
She encouraged Garner to watch his diet, exercise, and decrease his smoking. Id. Two weeks
later, Garner complained that the Fanapt seemed to make the voices worse. (Tr. 282.) Dr.
9
Saphris is an antipsychotic drug indicated for the treatment of mental disorders such as
schizoaffective disorder. See WebMD, http:// www.webmd.com/drugs (last visited February 28,
2017).
10
Fanapt is an antipsychotic drug indicated for the treatment of mental disorders such as
schizophrenia. See WebMD, http:// www.webmd.com/drugs (last visited February 28, 2017).
Page 20 of 25
Caruso noted that Garner had undergone psychological testing and Garner was diagnosed with
bipolar affective disorder, psychotic disorder not otherwise specified, panic disorder not otherwise
specified, and generalized anxiety disorder with features of agoraphobia and panic; rule out
schizoaffective disorder and paranoid schizophrenia. Id. Dr. Caruso diagnosed Gamer with
schizoaffective disorder. Id. She discontinued the Fanapt, and started him on Thorazine.11 Id.
She also started him on a trial of Topamax12 to help with his mood, and noted that Garner was at a
“highly concerning weight.” Id. On January 8, 2013, Garner reported that the Thorazine helped
make the auditory hallucinations “tolerable.” (Tr. 280.) He complained of decreased energy.
Id. Dr. Caruso adjusted Garner’s medications to help with smoking cessation and weight loss.
Id. On January 22, 2013, Dr. Caruso again discussed Garner’s weight and smoking cessation at
length. (Tr. 278.) Garner reported that his hallucinations were “greatly diminished.” Id. On
February 19, 2013, Dr. Caruso stated Garner was “fairly stable at this time. The biggest concern
is the continued weight gain.” (Tr. 276.) Dr. Caruso continued Garner’s medications, and
strongly encouraged him to continue exercising, work on losing weight, and decrease his smoking.
Id. On that date, Dr. Caruso referred Garner to Dr. Courtney Johnson at Community Counseling
Center for treatment, as Dr. Caruso was leaving the practice. (Tr. 275.) In a letter to Dr.
Johnson, Dr. Caruso indicated that Garner carries a diagnosis of schizoaffective disorder and “has
been stable for a couple of months.” Id.
On March 13, 2013, Garner’s last visit with Dr. Caruso, Garner reported a decrease in his
auditory hallucinations. (Tr. 273.) He continued to gain weight, weighing 480 pounds at that
11
Thorazine is an antipsychotic drug indicated for the treatment of mental disorders such as
schizophrenia. See WebMD, http:// www.webmd.com/drugs (last visited February 28, 2017).
12
Topamax is an anticonvulsant or antiepileptic drug indicated for the treatment of seizures and
migraine headaches. See WebMD, http:// www.webmd.com/drugs (last visited February 28,
2017).
Page 21 of 25
time. Id. Garner reported that he understood how detrimental it was, but continued to eat and
smoke two packages of cigarettes a day. Id. Upon examination, Garner was pleasant,
cooperative, calm, exhibited good eye contact, his speech was normal, his mood was “okay,” his
affect was somewhat dysphoric, his thought content was logical, his thought process was linear
and goal directed, he denied suicidal or homicidal ideation, and his judgment and insight were
poor. Id. Dr. Caruso continued Garner’s medications. Id.
Dr. Caruso’s treatment notes do not support the presence of marked and extreme
limitations as expressed in her MSS. As the ALJ noted, the GAF score of 65 Dr. Caruso assessed
in June 2012 is indicative of only mild limitations in social and occupational functioning. (Tr.
299.) Although GAF scores do not have a direct correlation to SSA severity requirements, they
may be considered in reviewing an ALJ’s determination that a treating source’s opinion was
inconsistent with the treatment record. Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013).
In addition, Dr. Caruso’s clinical findings were minimal. Upon mental examination, Dr.
Caruso consistently noted that Garner was pleasant, cooperative, calm, exhibited good eye contact,
his speech was normal, his thought content was logical, his thought process was linear and goal
directed, and he denied suicidal or homicidal ideation. The treatment notes support the ALJ’s
finding that Garner’s reported auditory hallucinations improved with treatment. (Tr. 280, 275,
278, 273.) In February of 2013, Dr. Caruso indicated that Garner was stable, and that her biggest
concern at that time was Garner’s continued weight gain. (Tr. 276.) Indeed, Dr. Caruso
dedicated a significant amount of her treatment notes to discussing concerns about Garner’s
continued weight gain and smoking.
The ALJ also properly pointed out that Dr. Caruso’s opinions were the product of a
pre-printed form questionnaire solicited by claimant’s attorney, and that she failed to articulate the
Page 22 of 25
basis of the limitations found. (Tr. 25.) See Toland v. Colvin, 761 F.3d 931, 937 (8th Cir. 2014)
(holding that an ALJ may discount a conclusory medical opinion). Not only did Dr. Caruso fail to
cite any clinical findings to support her opinions, but she had last treated Garner in March 2013,
over one year prior to completing the MSS.
Garner contends that, even if Dr. Caruso’s opinion was not supported by her own treatment
notes, this is a reason for the ALJ to give non-controlling weight but would not be sufficient to give
the opinion non-substantial weight. Garner relies on Papesh v. Colvin, 786 F.3d 1126, 132 (8th
Cir. 2015), for this proposition. It is true that in Papesh the Eighth Circuit found that a treating
physician’s opinion should not “ordinarily be disregarded and is entitled to substantial weight.”
786 F.3d at 1132 (emphasis added). The Court, however, further noted that a treating physician’s
opinion may have “‘limited weight if it provides conclusory statements only, or is inconsistent
with the record.’” Id. (quoting Samons, 497 F.3d at 818). The ALJ in this case, consistent with
Papesh, found that Dr. Caruso’s opinion was entitled to limited weight because it was both
inconsistent with her own treatment notes and conclusory.
The undersigned, therefore, finds that the ALJ provided sufficient reasons for assigning
little weight to the opinions provided by Dr. Caruso in her April 2013 MSS.
In determining Garner’s mental RFC, the ALJ also indicated that he was assigning
“significant weight” to the opinions of examining psychologist Dr. Georgette Johnson, who found
that Garner’s mental impairments imposed moderate limitations in social and occupational
functioning. (Tr. 25, 269.) Dr. Johnson recommended that Garner pursue vocational
rehabilitation. (Tr. 269.) The ALJ also accorded “considerable weight” to the opinion of state
agency medical consultant, Keith Allen, Ph.D., who found that Garner retained the ability to
perform simple, repetitive tasks on May 21, 2013. (Tr. 25, 87.)
Page 23 of 25
The ALJ concluded that Garner had the mental RFC to perform simple, routine, and
repetitive tasks that would not involve fast-paced production work. (Tr. 19.) He further limited
Garner to only occasional contact with the public and co-workers and tasks with no more than
occasional changes in a routine work setting. Id.
The ALJ must assess a claimant’s RFC based upon all relevant, credible evidence in the
record, including medical records, the observations of treating physicians and others, and the
claimant’s own description of his symptoms and limitations. 20 C.F.R. § 404.1545(a); Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005).
A claimant’s RFC is a medical question, and there must be some medical evidence, along with
other relevant, credible evidence in the record, to support the ALJ’s RFC determination. Id.;
Hutsell v. Massanari, 259 F.3d 707, 711–12 (8th Cir. 2001); Lauer v. Apfel, 245 F.3d 700, 703-04
(8th Cir. 2001); McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). An ALJ’s RFC
assessment which is not properly informed and supported by some medical evidence in the record
cannot stand. Hutsell, 259 F.3d at 712. However, although an ALJ must determine the
claimant’s RFC based upon all relevant evidence, the ALJ is not required to produce evidence and
affirmatively prove that a claimant is able to perform certain functions. Pearsall, 274 F.3d at
1217 (8th Cir. 2001); McKinney, 228 F.3d at 863. The claimant bears the burden of establishing
his RFC. Goff, 421 F.3d at 790.
The mental RFC formulated by the ALJ is supported by substantial evidence in the record
as a whole. The ALJ found that Garner’s subjective allegations of disabling mental symptoms
were not entirely credible. The ALJ considered Dr. Caruso’s treatment notes, which revealed that
Garner’s psychiatric symptoms were controlled with medication. He also considered Dr.
Johnson’s opinion that Garner had moderate limitations which would not prevent him from all
Page 24 of 25
work activity. The ALJ’s determination is supported by state agency psychologist Dr. Allen’s
opinion that Garner retained the ability to perform simple, repetitive work.
After determining Garner’s RFC, the ALJ found that Garner was unable to perform any
past relevant work. (Tr. 25.) The ALJ properly relied on the testimony of a vocational expert to
find that Garner could perform other work existing in significant numbers in the national economy
with his RFC. (Tr. 26.) See Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a
vocational expert’s testimony is substantial evidence when it is based on an accurately phrased
hypothetical capturing the concrete consequences of a claimant’s limitations). Thus, the ALJ’s
decision finding Garner not disabled is supported by substantial evidence.
Accordingly, Judgment will be entered separately in favor of Defendant in accordance with
this Memorandum.
Dated: March 28, 2017
___________________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Page 25 of 25
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