Ward v. Colvin

Filing 19

MEMORANDUM AND ORDER re: 18 SOCIAL SECURITY CROSS BRIEF re 13 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin, 13 SOCIAL SECURITY BRIEF filed by Plaintiff Diedre Ward. IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate judgment shall be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 2/6/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DIEDRE WARD,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:15-cv-00225-NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Diedre Ward (“Plaintiff”) for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
Plaintiff has filed a brief in support of the Complaint (Doc. No. 13), and Defendant has filed a
brief in support of the Answer (Doc. No. 18). The Parties have consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. No.
8).
I. PROCEDURAL HISTORY
Plaintiff filed her application for SSI on July 11, 2013 (Tr. 153-58). Plaintiff was initially
denied on August 21, 2013, and she filed a Request for Hearing before an Administrative Law
Judge (“ALJ”) (Tr. 96-101, 103-08). After a hearing, by decision dated September 9, 2014, the
ALJ found Plaintiff not disabled (Tr. 12-23). On October 21, 2015, the Appeals Council denied

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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 should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Plaintiff’s request for review (Tr. 1-6). As such, the ALJ’s decision stands as the final decision
of the Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
July 11, 2013, the application date (Tr. 17). The ALJ found Plaintiff has the severe impairments
of obesity, osteoarthritis of both knees, history of pulmonary embolism, a mood disorder, and a
personality disorder but that no impairment or combination of impairments met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Tr. 17-18).
After considering the entire record, the ALJ determined Plaintiff has the residual
functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b) with the
following limitations (Tr. 19). She is able to stand for 4 hours in an 8-hour workday (Id.). She
should avoid excessive exposure to temperature extremes, humidity, strong odors, fumes, dust,
chemicals, or other pulmonary irritants (Id.). Due to her mental impairment, she is limited to
jobs that involve only simple, repetitive tasks, and require no more than occasional contact with
the public and co-workers (Id.). The ALJ found Plaintiff has no past relevant work, but that
there are jobs that exist in significant numbers in the national economy that she can perform,
including assembler, ejection molder, and bench assembler (Tr. 22-23).

Thus, the ALJ

concluded that a finding of “not disabled” was appropriate (Tr. 23). Plaintiff appeals, arguing a
lack of substantial evidence to support the Commissioner’s decision.
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails

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to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may
be terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).

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Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but
is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.
Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to

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reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) 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 physicians;
(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 proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
IV. DISCUSSION
In her appeal of the Commissioner’s decision, Plaintiff asserts that the ALJ failed to
properly weigh the opinion of her treating physician, Dr. Courtney Johnson (“Dr. Johnson”), 2 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. Johnson (Doc. No. 13 at 10). For the following reasons, the Court
finds that Plaintiff’s argument is without merit, and that the ALJ’s decision is based on
substantial evidence and is consistent with the Regulations and case law.
In a Mental Medical Source Statement dated July 7, 2014, Dr. Johnson listed Plaintiff’s
mental diagnoses as mood disorder not otherwise specified, alcohol dependence in remission,
2

The Parties do not dispute that Dr. Johnson is Plaintiff’s treating physician (See Doc. No. 13 at
10 and Doc. No. 18 at 11).
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cocaine dependence in remission, and borderline personality disorder (Tr. 282). Dr. Johnson
indicated that Plaintiff’s conditions would cause her to have 3 bad days per month resulting in
the need to leave work prematurely or to be absent (Tr. 282) and noted that Plaintiff would be
“off task” 10% of the time (Id.). Dr. Johnson also indicated that Plaintiff experiences drowsiness
as a side effect to her medication (Id.). Dr. Johnson opined that Plaintiff had markedly limited
restriction in the following abilities: to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; to work in coordination with or
proximity to others without being distracted by them; to complete a normal workday and
workweek without interruption from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes; and to respond
appropriately to changes in the work setting (Tr. 281). Dr. Johnson further opined other
moderate limitations to Plaintiff’s abilities in the areas of understanding and memory; sustained
concentration and persistence; social interaction; and adaptation (Tr. 281-82).
“A treating physician’s opinion regarding an applicant’s impairment will be granted
controlling weight, provided the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record.” Reece v. Colvin, 834 F.3d 904, 908-09 (8th Cir. 2016) (internal quotations omitted).
“Although a treating physician's opinion is usually entitled to great weight, it ‘do[es] not
automatically control, since the record must be evaluated as a whole.’ ” Id. (quoting Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). “A treating physician's own inconsistency may
undermine his opinion and diminish or eliminate the weight given his opinions.” Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015) (internal quotation marks omitted). “Whether the ALJ

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gives the opinion of a treating physician great or little weight, the ALJ must give good reasons
for doing so.” Prosch, 201 F.3d at 1013 (citing 20 C.F.R. § 404.1527(d)(2)).
The court finds that the ALJ gave proper weight to the opinion of Dr. Johnson. The ALJ
afforded Dr. Johnson’s opinion “no weight,” finding Dr. Johnson’s opinion “in stark
contradiction to [Plaintiff’s] description of her symptoms and the doctor’s observations of her
mental status” (Tr. 22). Specifically, the ALJ found “[s]ometimes [Plaintiff] reported having
symptoms, but many times, she reported her mood was stable and her medication worked well”
(Tr. 21). Indeed, as reflected Dr. Johnson’s treatment records, Plaintiff’s mood “was mostly
stable” and her medication dosing was rarely modified (Tr. 283, 285, 287, 289). Similarly, Mr.
Robert Dansby, F.N.P. frequently observed a normal mental status (Tr. 250, 254, 257, 260, 262,
264, 307, 310). Further, Dr. Johnson consistently assessed Plaintiff with Global assessment of
functioning (“GAF”) scores ranging from 50 to 60 3 and, while these scores indicate moderate
limitations in functioning, they do not support the severity of limitation as suggested by Dr.
Johnson in her opinion (See, e.g., Tr. 283 (51-60), 286 (50-59), 288 (50-59)).

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Global assessment of functioning (“GAF”) is the clinician=s judgment of the individual=s overall
level of functioning, not including impairments due to physical or environmental limitations.
See Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, 32-34 (4th ed. rev. 2000).
Expressed in terms of degree of severity of symptoms or functional impairment, GAF scores of
31 to 40 represent Asome impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood,@ 41 to 50
represents Aserious,@ scores of 51 to 60 represent Amoderate,@ scores of 61 to 70 represent Amild,@
and scores of 90 or higher represent absent or minimal symptoms of impairment. Id. at 32. See
also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (A[A] GAF score of 65 [or 70] . . .
reflects >some mild symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in
social, occupational, or school functioning . . . but generally functioning pretty well, has some
meaningful interpersonal relationships.=@) (quoting Kohler v. Astrue, 546 F.3d 260, 263 (2d Cir.
2008) (quoting Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. rev. 2000)
(alterations in original). See also Goff, 421 F.3d at 789, 791, 793 (affirming where court held
GAF of 58 was inconsistent with doctor’s opinion that claimant suffered from extreme
limitations; GAF scores of 51-60 supported ALJ’s limitation to simple, routine, repetitive work).

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In addition to the medical record as a whole, the ALJ reviewed the other mental health
opinion evidence of record. 4 To the extent that Plaintiff asserts that the ALJ’s analysis is flawed
by his reliance on other opinions of record, it is the ALJ’s function to resolve conflicts among
differing medical opinions. See Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007). In this
case, the ALJ gave the opinions of Dr. Joan Singer, Ph.D. (“Dr. Singer”), a state agency
psychological consultant, and Mr. Robert Dansby, F.N.P. (“Mr. Dansby”), Plaintiff’s primary
treating medical provider, “significant weight,” finding the opinions “generally consistent with
the symptoms observed by the claimant’s healthcare providers” (Tr. 21-22). Dr. Singer
completed a case analysis on August 21, 2013 (Tr. 82-89). In her Mental Residual Functional
Capacity Assessment, Dr. Singer opined Plaintiff has understanding and memory limitations,
specifically finding that Plaintiff is moderately limited in her ability to understand and remember
detailed instructions (Tr. 86). She also found the Plaintiff to be moderately limited in her ability
to carry out detailed instructions; the ability to maintain attention and concentration for extended
periods; the ability to work in coordination with or in proximity to others without being
distracted by them; and the 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 (Tr. 86-87). Dr. Singer further opined that
Plaintiff is moderately limited in her ability to respond appropriately to changes in the work
setting (Tr. 87).
The Court finds that the ALJ properly considered the opinion of Dr. Singer. As a state
agency psychological consultant, Dr. Singer is a highly qualified expert in Social Security
disability evaluation. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i); Kamann v. Colvin, 721
4

Plaintiff’s argument solely addresses Plaintiff’s mental health impairments, as such the court
will only address the mental health opinions of record.
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F3d 945, 951 (8th Cir. 2013) (State agency psychologist’s opinion supported ALJ’s finding that
claimant could work despite his mental impairments); Casey v. Astrue, 503 F.3d 687, 694 (8th
Cir. 2007) (finding the ALJ did not err in considering State agency psychologist’s opinion along
with the medical evidence as a whole). Although Plaintiff asserts that Dr. Singer’s opinion is
entitled to less weight because she issued her opinion “well before the vast majority of
[Plaintiff’s] psychiatric treatment notes were rendered and also before Dr. Johnson’s opinion was
issued,” “Plaintiff does not provide, and the Court is not aware of, any legal authority which
holds a consultant's medical opinion must be based on subsequently created medical records, or
that the consultant's opinion must necessarily be discounted because it is not based on those
records.” Barker v. Colvin, No. 14-0900-CV-W-ODS-SSA, 2015 WL 4928556, at *1 (W.D. Mo.
Aug. 18, 2015). Indeed, such a timeline is not uncommon in the context of review as claimants
will update their medical records and other evidence of record throughout the course of the
pendency of their claim and the medical or psychological consultant will necessarily review the
file as it is at a certain point in time. As discussed previously, despite Dr. Singer’s narrative
brevity, the ALJ’s RFC determination is further bolstered by the medical evidence of record
which is consistent with Dr. Singer’s opinion.
The ALJ also relied on the Mental Capacity Assessment completed by Mr. Dansby on
August 2, 2013 (Tr. 273-75). In his Mental Capacity Assessment, Mr. Dansby opined a
moderate 5 degree of limitation in only one area—Plaintiff’s ability to carry out detailed
instructions (Tr. 273). Mr. Dansby also noted a slight 6 degree of limitation in the following
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As defined by the form, a moderate degree limitation indicates that, “The individual will have
intermittent difficulty performing in this area. The individual can generally perform
satisfactorily in this area but not always” (Tr. 273).
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A slight degree of limitation suggests, “There is some mild limitation in this area, but the
individual can generally function satisfactorily” (Id.).
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abilities: to understand and remember very short and simple instructions; to maintain attention
and concentration for extended periods; to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; to sustain an ordinary routine without
special supervision; to complete a normal workday without interruptions from psychologically
based symptoms; to perform at a consistent pace with a standard number and length of rest
periods; to interact appropriately with the general public; to respond appropriately to changes in
the work setting; and to set realistic goals or make plans independently of others (Tr. 273-75)
(emphasis in original). Mr. Dansby further opined that Plaintiff would miss one day of work in
an average month (Tr. 274).
The Court also finds that the ALJ properly considered the opinion of Mr. Dansby. As a
preliminary matter, Plaintiff appears to assert that the ALJ considered Mr. Dansby as a treating
source but, as a nurse practitioner, Mr. Dansby is not an acceptable medical source (See Doc. No.
13 at 12-13). While the ALJ indicates that Mr. Dansby was the Plaintiff’s primary care provider,
he also explicitly notes that Mr. Dansby is not an acceptable medical source (Tr. 20). Although
information from an “other source” opinion, such as Mr. Dansby’s, cannot establish the existence
of a medically determinable impairment, an ALJ may consider “other source” opinions. SSR
06–03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). “Regarding evidence from [other] sources, the
ALJ should consider such factors as the nature and extent of the relationship, whether the
evidence is consistent with other evidence, and any other factors that tend to support or refute the
evidence.” Igo v. Colvin, 839 F.3d 724, 731 (8th Cir. 2016) (internal citations omitted). In this
case, the ALJ appropriately indicated that Mr. Dansby, although a nurse practitioner, was the
Plaintiff’s primary care provider, specifically noting that he had a treatment relationship with the
Plaintiff and that his assessment of her level of functioning was supported by the objective

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medical evidence and consistent with his own observations. (Tr. 20-21). Indeed, as previously
detailed, Dr. Johnson reported that Plaintiff’s mood was mostly stable (Tr. 283, 285, 287, 289).
Dr. Johnson further indicated that Plaintiff was responding well to medication, rarely modifying
the dose (Id.) and Mr. Dansby consistently observed a normal mental status (Tr. 250, 254, 257,
260, 262, 264, 307, 310).
Finally, the ALJ properly incorporated the Plaintiff’s credible mental impairment
limitations in his determination of Plaintiff’s RFC. As indicated above, the ALJ found Plaintiff
to have the severe mental impairments of a mood disorder and a personality disorder (Tr. 17). In
his RFC determination, the ALJ specified, “[d]ue to her mental impairments [Plaintiff] is limited
to jobs that involve only simple, repetitive tasks, and requires no more than occasional contact
with [the] public and co-workers” (Tr. 19). These significant limitations indicate that the ALJ
gave some credit to the mental health opinions of record, where supported by objective medical
evidence. See Choate v. Barnhart, 457 F.3d 865, 870 (8th Cir. 2006).
Accordingly, the ALJ properly offered a sufficient basis to give Dr. Johnson’s opinion
“non-substantial weight” in addition to “[non-]controlling weight.” See Papesh v. Colvin, 786
F.3d 1126, 1132 (8th Cir. 2015) (emphasis in original) (internal citations omitted) (finding error
when the ALJ offered no basis to give an opinion non-substantial weight; “For example, the ALJ
did not find the opinion inconsistent with the record or another [of the physician’s own]
opinion[s].”). Although the ALJ did not address all of the non-controlling factors found in 20
C.F. R. §§ 404.1527(c), 416.927(c), 7 the ALJ is not required to cite specifically to the
regulations but need only clarify whether he discounted the opinion and why. Kientzy v. Colvin,
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If a treating physician's opinion is not given controlling weight, the amount of weight given to
it “is to be governed by a number of factors [contained in 20 C.F.R. § 416.927(c) (applying to
claims for DIB) or 20 C.F.R. 416.3927(c) (applying to claims for SSI)] including the examining
relationship, the treatment relationship, consistency, specialization, and other factors.” Shontos
v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003).
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No. 4:15 CV 707 JMB, 2016 WL 4011322, at *8 (E.D. Mo. July 27, 2016) (citing Grable v.
Colvin, 770 F.3d 1196, 1201-02 (8th Cir. 2014)). In this case, the ALJ explained his reasons for
giving Dr. Johnson’s opinion “no weight” as inconsistencies between Plaintiff’s description of
her symptoms and Dr. Johnson’s own records. The ALJ also considered the medical record as a
whole and the other relevant mental health opinions of record, properly incorporating Plaintiff’s
credible limitations into his determination of her RFC.
V. CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 6th day of February, 2017.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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