Burns v. Colvin

Filing 25

MEMORANDUM AND ORDER re: 24 SOCIAL SECURITY CROSS BRIEF re 9 Answer to Complaint filed by Defendant Nancy A. Berryhill, 17 SOCIAL SECURITY BRIEF filed by Plaintiff James Adam Burns. For the reasons discussed above, the Court finds that the Commissioner's decision is supported by substantial evidence in the record as a whole. Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 6/23/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JAMES ADAM BURNS,
Plaintiff,
vs.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant.

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Case No. 1:16-CV-230 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On January 23, 2014, plaintiff James Adam Burns filed applications for a
period of disability, disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq.,
and supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an
alleged onset date of October 31, 2013.2 (Tr. 217-23, 224-29). After plaintiff’s
applications were denied on initial consideration (Tr. 160, 161), he requested a
hearing from an Administrative Law Judge (ALJ). Following a video hearing on April
20, 2015, (Tr. 66-110), the ALJ issued a decision denying plaintiff’s applications on
May 15, 2015. (Tr. 14-59). The Appeals Council denied plaintiff’s request for review

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.
2
Plaintiff sought disability benefits on two prior occasions. (Tr. 17-18). On July 27, 2009, he
filed applications for alleged disabilities beginning on May 15, 2008. After initial denial,
plaintiff sought a hearing from an ALJ but then requested dismissal. He filed for benefits
again on March 1, 2012, with an alleged onset date of June 15, 2011. An ALJ denied the
2012 applications on October 20, 2013. (Tr. 118-30). Plaintiff did not appeal the denial. (Tr.
17). The ALJ considered evidence from the prior applications in reaching his decision.
However, the prior exhibits they are not included in the administrative record before the
Court.

on August 5, 2016. (Tr. 1-7). Accordingly, the ALJ’s decision stands as the
Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In a Disability Report dated January 23, 2014, plaintiff reported that he was
unable to work due to a malformed spine, bipolar disorder, manic depressive
disorder, borderline schizophrenia with psychotic tendencies, social avoidant
personality disorder, major anger issues with intermittent aggression, chronic pain
in back and left hip, sleep apnea, night terrors, tingling and numbness in legs, right
leg is shorter than left leg, and headaches — head trauma. (Tr. 243-44). He worked
as a general laborer and trash collector and had been self-employed in the
construction and scrap industries. Plaintiff’s prescriptions included a muscle relaxer
and an opioid to treat back pain, medication to treat migraines, a sleep aid, an
antidepressant, and an anxiolytic. (Tr. 246). On July 17, 2014, and March 11, 2015,
plaintiff reported that he was taking medications for bipolar disorder, anxiety, high
cholesterol, and pain. (Tr. 290, 296).
In a Function Report completed on February 2, 2014, plaintiff reported that
he lived with and helped care for his father, who had Parkinson’s disease. (Tr. 25464). Plaintiff and his father shared responsibility for laundry, cooking, and
housework, as well as caring for a pet. Plaintiff prepared meals and did yard work
when able. He spent time networking on Facebook and playing games. He also
worked as a “prayer warrior” and youth counselor. (Tr. 261). He stated that pain
interfered with his ability to fall asleep and complete personal hygiene. His hobbies
included tattooing, body piercing, and shooting pool, which he engaged in as often
-2-

as possible, although his hands did not work as well as they used to. He went out at
least once a day, but not alone, because he had social avoidant disorder and did
not deal well with others. He did not have a driver’s license. Plaintiff was able to
pay bills, count change, and manage bank accounts. He had difficulty following
written and spoken instructions, completing tasks, and handling changes in routine.
When he became too stressed, he blacked out, repeated words, and behaved
strangely. He had been fired from a job for constantly arguing with fellow
employees. He had problems with lifting, squatting, bending, standing, reaching,
walking, sitting, kneeling, climbing stairs, talking, hearing, seeing, memory,
completing tasks, concentration, understanding, following instructions, using his
hands, and getting along with others. He did not walk if he could avoid it. In an
updated report completed on March 18, 2014, plaintiff stated that his back and hip
pain had worsened and he had been diagnosed with bipolar disorder (borderline)
and schizophrenia (borderline) with psychotic features. (Tr. 267-73).
B. March 4, 2014 Disability Determination
Based on a review of the medical records, State disability evaluator Geri
Spears found that plaintiff had the medically determinable

impairment of

degenerative disc disorder. (Tr. 136-47; 148-59). She opined that plaintiff could
frequently lift or carry up to 10 pounds and occasionally lift or carry up to 20
pounds; could sit, stand, and walk for a total of 6 hours in an 8-hour work day, with
normal breaks; could frequently climb ramps, stairs, ladders, ropes, and scaffolds;
and could occasionally stoop, kneel, crouch, or crawl. Psychologist James W.
Morgan, Ph.D., found that plaintiff’s medically determinable impairments were
affective disorder, anxiety-related disorder, and substance addiction disorder.
-3-

Medical records showed that plaintiff demonstrated very good concentration and
attention but had poor insight and judgment. He reported adequate energy and
mood. Dr. Morgan opined that plaintiff was moderately limited in the abilities to
understand, remember, and carry out detailed instructions; make simple workrelated decisions; maintain concentration and persistence for extended periods;
perform activities within a schedule, maintain attendance, and be punctual;
complete

a

psychologically

normal
based

workday
symptoms

and

workweek

and

work

at

without
a

interruptions

consistent

pace

from

without

unreasonable breaks; interact appropriately with the public and coworkers; respond
appropriately to changes in the work setting; and set realistic goals or make plans
independently of others. Plaintiff’s allegations of disabling mental conditions were
partially credible, in that he had “some limitations but his concentration and mood
are good [and] he is able to function to do many activities.” (Tr. 140). Dr. Morgan
concluded that plaintiff was not disabled on the basis of his mental impairments.
C. Testimony at the April 20, 2015 Hearing
Plaintiff was 42 years old at the time of the hearing. (Tr. 74). He lived in a
mobile home with his girlfriend and his father. He had a daughter who was a
college student in Wisconsin and with whom he was in regular communication. He
had completed high school and was able to read, write, and do simple math. (Tr.
75). He had no vocational training. Plaintiff was chiefly supported by his father and
girlfriend and he received food stamps. (Tr. 76). He and his girlfriend also collected
scrap metal about twice a month. (Tr. 77). Plaintiff’s driver’s license had been
revoked five years earlier; he would be eligible to have it reinstated in another
year. (Tr. 75).
-4-

Plaintiff previously worked as a trailer finisher, installing floor boards and
axles. At the same time, he worked part-time as a trash collector.

In 2007, he

sustained a work-related back injury. (Tr. 77-79). Between 2009 and 2012, he did
construction work for his brother-in-law. He testified that his “back was really bad
then” and that he could not lift more than 20 pounds. (Tr. 80-81). At the time of
the hearing, plaintiff was able to sit and stand between 10 and 20 minutes before
he needed to change positions, and walk for about 20 minutes before he needed to
rest. (Tr. 94).
Plaintiff testified that he suffered from constant back pain, arising from a
congenital spine malformation and subsequent injury. (Tr. 83). He said that when
cooking meals he stood for five minutes at a time with intervals of rest. It took him
four days to complete yard work, after which he spent two days in bed. (Tr. 84).
Following his back injury in 2007, he had 6 months of chiropractic treatment. More
recently, he received injections which reduced the pain enough to allow him to be
more active. In addition, he had just been prescribed hydrocodone by a pain
management center. The medication “takes the edge off” the pain but he still
experienced stabbing, burning and pinching sensations, especially in his left hip.
(Tr. 84-85). He also had pain in his knees, which he attributed to injuries he
sustained in a car accident when he was a teenager. He underwent arthroscopic
procedures at the time of the original injury. (Tr. 85-86). Finally, he experienced
loss of sensation and motor control in his hands due to pinched nerves, causing him
to drop things on a daily basis. (Tr. 87).
Plaintiff testified that he had mental health issues that interfered with his
ability to work. He began cutting himself when he was five years old in response to
-5-

familial stress. He testified that he did not get along well with others and had issues
with anger and aggression when he worked with others. (Tr. 87-88). He regularly
experienced auditory and visual hallucinations. In the past, he had been treated
with various medications, including lithium and Thorazine, without much benefit. He
was presently receiving treatment from a psychiatrist and three different
counselors. His medications reduced the duration of his hallucinations and had
stabilized his mood somewhat. (Tr. 90-91).
Plaintiff had a history of alcohol and marijuana abuse. (Tr. 92). He testified
that he began using substances to cope and “to feel normal.” His current
psychotropic medications eliminated the need to abuse alcohol and marijuana. It
had been over a month since he last used alcohol and more than three months
since he used marijuana. He had used cocaine in the past, citing a host of triggers,
including finding his mother’s dead body and the stillbirth of a child. (Tr. 93). He
denied ever abusing prescription medications, although he had recently tested
positive for Xanax and been discontinued from his pain management care. (Tr. 94,
42). He asserted that the test was incorrect and reported that he had become quite
upset. (Tr. 97) (testifying, “it was not a pretty sight.”). He testified that he
underwent regular drug screens as a condition of probation, which he was
scheduled to finish within a year.
Vocational expert Roxane Minkus, Ph.D., testified that plaintiff’s previous
employment as a trailer assembler was performed at the medium level of exertion
and had a specific vocational preparation (SVP) of 3; his previous employment as a
construction worker was performed at the light level and had an SVP of 4. (Tr. 99).
The ALJ asked Dr. Minkus about the employment opportunities for an individual of
-6-

plaintiff’s age, education, and work history who was limited to light exertional level
work; who was limited to occasional climbing stairs and ramps, stooping, kneeling,
crouching and crawling; could have only occasional interaction with the public and
coworkers; and was limited to work that required only occasional decision making
and changes in work setting. Dr. Minkus testified that such an individual would not
be able to perform plaintiff’s past relevant work but could perform nationallyavailable work as a housekeeper, bench assembler, and electrical equipment subassembler. (Tr. 101). These three jobs would still be suitable for an individual who
could have no interaction with the public. If the hypothetical individual were
restricted to sedentary work, he could perform work as a small-product or bench
assembler, a surveillance systems monitor, or product sorter. (Tr. 103-04). Each of
these positions would accommodate the need to change positions once an hour. An
individual who was off-task 20 percent of the day, due to pain or mental health
issues, would be unable to maintain employment without special accommodation.
(Tr. 105-06). Similarly, there would be no work available in the competitive labor
market for an individual who became aggressive in the workplace. (Tr. 107).
D. Medical Records
Between October 31, 2013, the alleged onset date, and May 15, 2015, when
the ALJ issued the decision in this case, plaintiff regularly saw his primary care
physician, Daniel G. Domjan, M.D. He also received pain management services,
chiefly from the Saint Francis Medical Center. He received psychiatric and
counseling services from Bootheel Counseling Services.
1. Primary Care

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Plaintiff saw Dr. Domjan ten times between March 2013 and November 2014.
His initial visit occurred shortly after his release from a six-month term of
imprisonment for a parole violation. (Tr. 510-17). He complained of pain in the
lower spine which he attributed to a congenital spine malformation, a motor vehicle
accident in 1988, and years of manual labor. He also experienced numbness and
tingling in his left foot. In addition, plaintiff suffered from migraine headaches,
which were well-controlled with medication. Plaintiff reported that he was presently
using marijuana and had a history of using cocaine and hallucinogens. He had not
used alcohol for six months. Plaintiff reported that he did a lot of walking. Dr.
Domjan described plaintiff as alert and in no acute distress and his mood was
euthymic; he denied suicidal ideation. On examination, plaintiff had multiple
arthralgias of the shoulders, wrists, hands, and knees, with mild tenderness of the
lumbosacral spine on palpation; straight-leg raising test was positive on both sides.
Plaintiff was able to touch his ankles. He displayed normal reflexes, stance, gait,
and sensation. Dr. Domjan assessed plaintiff’s conditions as inadequately controlled
lumbago, well-controlled migraine headaches, alcohol abuse in remission, and
depression with anxiety. Dr. Domjan advised plaintiff to stop smoking and start a
swimming program to treat his back pain.
Over the course of the next eight office visits, plaintiff’s weight trended
higher, albeit with some fluctuation, and he stopped exercising. He continued to
demonstrate tenderness of the lumbosacral spine on palpation and, starting in May
2014, displayed a limp. (Tr. 501, 499, 497). He began consuming modest amounts
of beer. (Tr. 507, 505, 503). Starting in October 2013, Dr. Domjan prescribed
tramadol for pain, (Tr. 508, 502, 500), and by December 2013, plaintiff was being
-8-

treated for GERD. (Tr. 505, 503). In December 2013 and January 2014, plaintiff
reported blackouts and dizziness. Id. At the last visit in February 2015, Dr. Domjan
noted that plaintiff was limping on the right side, but he did not have any sensory
abnormalities or motor dysfunction. In Dr. Domjan’s assessment, plaintiff’s GERD
was well-controlled, his obesity was stable, his migraine was improving, his
depression with anxiety was stable, and his alcohol abuse was in remission. (Tr.
495). His lumbago remained unchanged and he suffered from chronic pain.
2. Pain Management
Plaintiff received treatment for lumbar pain from Carmen Keith, M.D., at the
Saint Francis Medical Center between August 2013 and March 2015, when he was
discharged for failing a drug screen. Plaintiff presented with complaints of lumbago
that radiated up into his head and down both legs, with numbness and weakness in
both legs. An MRI completed on August 6, 2013, confirmed plaintiff’s report that he
had a congenital malformation of the lower spine, showing that the L5 vertebra was
partially sacralized. (Tr. 341). In addition, plaintiff had a severe loss of disc height
at L4-L5 with disc desiccation and discogenic endplate irregularity and endplate
changes. Plaintiff also had moderate disc extrusion causing stenosis at multiple
levels, ranging from mild to marked, with a herniated disc at L4-L5 extending along
the course of the L5 nerve root.
On October 22, 2014, plaintiff told Dr. Keith that he had pain in his lower
cervical spine and lower lumbar spine, his left leg, and knees. He rated the pain at
level 7 on a 10-point scale. (Tr. 420). He also reported dizziness, headaches, and
numbness in his left leg and hand. On examination, plaintiff was alert and oriented,
with appropriate affect and demeanor. He had normal deep tendon reflexes and
-9-

intact sensory responses. His gait was affected by a left leg limp and the use of a
cane. He had decreased range of motion and back pain with flexion and extension,
and straight leg raising was positive on the left. He also had tenderness in the
lumbar spine and facet pain with extension. Muscle testing revealed at least 10
pounds of tone and strength at the L2 through L4 levels. (Tr. 422).

The

assessment was lumbar radiculopathy with progressively worsening left leg pain
and lumbar axial pain which Dr. Keith proposed to treat with a lumbar epidural
steroid injection. When plaintiff returned on October 29, 2014, he rated his pain at
level 7, and reported that the pain had begun radiating into his hips. (Tr. 406). A
lumbar steroid injection was administered. (Tr. 408).
Plaintiff was seen at Cape Spine and Neurosurgery on November 21, 2014.3
(Tr. 455-58). He reported that he had low back pain which he rated at level 7. He
denied feeling weak or dizzy. He stated that he used a cane when walking farther
than 50 feet. On examination, plaintiff performed heel- and toe-walking with
difficulty. Straight leg raising was positive on the right, while thigh-thrust and
Patrick’s tests were negative. Plaintiff had full ranges of motion, normal reflexes,
and intact sensation. (Tr. 457). Plaintiff was assessed with herniated lumbar disc,
degeneration of the lumbar disc (worsening), and spinal stenosis in the lumbar
region, without neurogenic claudication. Plaintiff reported that the October 2014
injection provided 80 percent pain relief and resolved his bilateral radiculopathy and
pain radiation; he was scheduled for a second injection in January 2015. Plaintiff
was encouraged to continue treatment with Dr. Keith because the injections
dramatically improved his pain. Further, “[i]f he no longer receives pain relief, he is
3

This visit is described as a three-month follow-up after pain management. (Tr. 455). The
record does not include notes from any prior visits with this provider.

-10-

to call our office and we will order a new MRI . . . [and] discuss surgical
intervention.” (Tr. 458). There is no record that plaintiff re-contacted Cape Spine
and Neurosurgery for another MRI or further treatment.
On December 12, 2014, Dr. Keith noted that Dr. Domjan had asked her to
take responsibility for prescribing plaintiff’s pain medications. Plaintiff’s left leg pain
had resolved but his medication provided only minimal relief for his back pain. (Tr.
446). On examination, plaintiff had a left leg limp and tender points in the lumbar
region. However, he had intact sensation and scored four on a five-point scale on
tests of muscle strength and tone. (Tr. 448). Plaintiff received another lumbar
injection that day. At follow-up on December 29, 2014, plaintiff reported complete
improvement in his left leg pain, but not his back pain, which he rated at level 5.
(Tr. 438, 436). He also reported suicidal thoughts a week earlier. On examination,
he had a left leg limp and tender points in the lumbar region; sensation was intact.
Dr. Keith prescribed a new muscle relaxer, ordered a urinalysis, and referred
plaintiff for a psychological evaluation.
Mark H. Kinder, Ph.D., completed a psychological evaluation on January 7,
2015. (Tr. 479-84). Dr. Kinder noted that plaintiff’s chronic leg and back pain was
complicated by his psychiatric history of a thought disorder and substance abuse.
Plaintiff acknowledged having suicidal thoughts in the recent past, but he identified
appropriate deterrents to suicide and presented a low risk for suicide. Plaintiff
participated in a dual diagnosis treatment program through which he saw a
psychiatrist, a counselor, and two caseworkers who came to his home. Plaintiff
claimed to have abstained from alcohol use for six months and marijuana use for
four months. He denied that pain caused deficits in his self-care and he was able to
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complete household chores, including laundry, cleaning, and cooking. His leisure
activities included watching television, spending time on the computer, and doing
piercings and tattoos. He hoped to avoid spine surgery. (Tr. 481).
Dr. Kinder administered a personality assessment inventory. During the
assessment, plaintiff was alert and fully oriented. He had grossly intact attentional
capacity and appropriate cognitive processing rate. He had fluent speech patterns,
with logical and sequential productions and no evidence of thought blocking or
dysnomia.

He

exhibited

abstract

reasoning,

problem-solving

and

judgment

processes. He displayed good cognitive endurance and showed no significant
impulsivity during testing and his frustration tolerance was intact. With respect to
plaintiff’s scores on the inventory, Dr. Kinder noted that he had elevated scores
across multiple scales and that there were indications that he was not completely
forthright in his responses. Nonetheless, his profile suggested that he was selfcentered and preoccupied by somatic complaints to the exclusion of concern for
others. (Tr. 483). His responses also suggested a history of antisocial behavior and
a likelihood of impulsive and reckless behavior. He endorsed responses indicating
that he experienced unusual sensory or perceptual events, including hallucinations,
with occasional confusion and difficulty concentrating. Dr. Kinder opined that
plaintiff might have difficulty establishing close relationships and might have
episodes of poorly controlled anger and other affects. Plaintiff’s responses on
another instrument indicated that he was at high risk for opioid misuse. (Tr. 479).
Dr. Kinder’s diagnostic impressions were psychotic disorder, not otherwise
specified; pain disorder associated with psychological factors and medical condition;

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and chronic pain syndrome. Dr. Kinder also provided rule out diagnoses of PTSD,
major depressive disorder, bipolar disorder, and antisocial personality disorder.
Plaintiff returned to Dr. Keith’s office on February 9, 2015. (Tr. 468-72). He
rated his pain at level 4. He complained of pain in his feet and his right knee and
had a limp. He continued to have tenderness in the lumbar spine. Sensation was
intact. He was sent for a urine test and given a follow-up appointment for March 9,
2015. (Tr. 471). When plaintiff appeared as scheduled, see Tr. 462-63 (signed
permission-to-discuss form dated March 9, 2015), he was informed that he was
being discharged from the Saint Francis program because he failed a drug screen.
(Tr. 549). Later that day, he had an intake for pain management services at
Managed Care, Inc. (Tr. 547-50). It was observed that plaintiff was not in acute
distress, had a normal gait, and had no difficulty with sitting in a chair or getting up
from a seated position. After he signed a controlled substance agreement, he was
given refills for his pain medications. The record contains no further treatment
notes from this provider.
3. Mental Health
On May 14, 2013, plaintiff appeared at the Gibson Recovery Center for an
assessment, based on the recommendation of his probation officer. (Tr. 309-17).
Plaintiff reported that he had been incarcerated for a total of 99 months for drug
offenses and parole violation. He had three charges of driving while intoxicated. He
was diagnosed with alcohol abuse, cannabis dependence, generalized anxiety
disorder and cyclothymic disorder and was determined to be appropriate for
substance abuse treatment. There are no further treatment records from the
Gibson Recovery Center.
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Pavan Palepu, M.D., of Bootheel Counseling Services, completed a psychiatric
diagnostic evaluation on September 24, 2013. (Tr. 328-31). Dr. Palepu noted that
plaintiff had a history of mood instability, psychosis, anxiety, and significant drug
dependence. As a child, he moved frequently and suffered verbal and physical
abuse from both parents. He cited his mother’s death nine years earlier as a big
source of stress. In addition, he had no income and owed $8,000 in court costs. He
was hoping his application for disability would be approved. He reported that his
mood, ability to concentrate, and energy levels were not problematic, and that it
had been a year since he experienced suicidal ideation. He had some thoughts
about harming others who had “done him wrong in the past” but denied having a
plan. Plaintiff reported that he constantly heard two or three voices whispering and
murmuring but he had learned to deal with them. He had visual hallucinations
about once a week. He experienced flashbacks and nightmares on a nightly basis.
He had experienced periods of mania, with racing thoughts, pressured speech, and
reckless behavior, such as getting tattoos and piercings. He also experienced
anxiety, which interfered with his sleep and concentration. He had panic attacks
about once or twice a month. He denied having symptoms of obsessive compulsive
disorder. Plaintiff reported that he had six prior suicide attempts many years
earlier. He had never been hospitalized for psychiatric care. Finally, plaintiff had a
20 year history of marijuana and cocaine use and had previously used
methamphetamine for about 5 years. At the time of the evaluation, he used alcohol
and marijuana about once a week and had used narcotics a week earlier. On mental
status examination, Dr. Palepu noted that plaintiff was casually dressed and had
numerous tattoos and piercings. He was “very pleasant, cooperative and attentive”
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with good eye contact and no psychomotor disturbances. (Tr. 330). His speech was
normal, his thought processes were logical and coherent, his memory was intact,
and he appeared to be of average intelligence, with “very good” attention and
concentration. Dr. Palepu assessed plaintiff’s insight as fair and his judgment as
poor. He was not responding to internal stimuli and there was no evidence of
dissociation or agnosia. Dr. Palepu diagnosed plaintiff with schizoaffective disorder,
bipolar type (rule out substance induced mood disorder and substance induced
psychotic

disorder);

alcohol

dependence;

opiate

dependence;

cannabis

dependence, moderate; and cocaine and methamphetamines dependence in
sustained full remission. Dr. Palepu prescribed an antipsychotic, anti-anxiety and
antidepressant medications. In addition, he referred plaintiff to Bootheel’s cooccurring disorders program and community psychiatric rehabilitation program.4
(Tr. 331).
Plaintiff saw Dr. Palepu once a month until April 2014.5 (Tr. 326, 348, 346,
320, 396, 394, 392). During this time, plaintiff continued to report hallucinations
and he presented with an irritable and/or depressed mood. Nonetheless, plaintiff
was appropriately groomed, he made good eye contact, and he had normal fluency.
Over the course of treatment, Dr. Palepu made adjustments to plaintiff’s
medications, including adding medications for bipolar disorder. Between October
2013 and March 2014, Dr. Palepu assigned plaintiff a Global Assessment of

4

As noted by Dr. Kinder, Bootheel Counseling Services provided plaintiff with medication
management, case management and counseling services. The only treatment notes
included in the record relate to the monthly medication meetings with psychiatrists Palepu
and Kohler.
5
Dr. Palepu memorialized the office visits with a form progress note which provided check
boxes for various categories of a patient’s presentation, including appearance, speech,
mood, hallucinations, etc. Other sections require the physician to writes notes. These
narrative sections are nearly illegible.

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Functioning (GAF) score between 52 and 54.6 In April 2014, plaintiff presented with
pressured speech and was disheveled. Dr. Palepu changed plaintiff’s diagnoses to
mood disorder, not otherwise specified, and psychosis, not otherwise specified and
assigned plaintiff a GAF score of 47.7 (Tr. 392).
In

June

2014,

responsibility

for

plaintiff’s

medication

management

transferred to Linda Kohler, M.D., also of Bootheel Counseling Services. (Tr. 390).
At that time, plaintiff reported that he was tired and had no energy or interests. His
medications “took care of” the hallucinations and curbed his obsessive compulsive
disorder and his anger. Dr. Kohler noted that plaintiff had “copious” facial piercings
and tattoos. He made good eye contact, his speech was rapid, his mood was
depressed, and his affect was incongruent. Dr. Kohler diagnosed plaintiff with
schizoaffective disorder, moderate. Between July and October 2014, Dr. Kohler
made multiple changes to plaintiff’s medications in response to his reports of side
effects. On July 11, 2014, plaintiff complained of daytime sedation and lethargy.
(Tr. 388). On July 30, 2014, he reported that he was “terrible; just terrible.” (Tr.
386). He complained of excessive jaw movement, inability to stay awake past 7:00
p.m., waking up frequently throughout the night, and increased anxiety. He had
stopped taking his bipolar medication three days earlier.

Plaintiff presented with

fair and congruent affect, his speech and psychomotor activity were normal, and he

6

The GAF is determined on a scale of 1 to 100 and reflects the clinician’s judgment of an
individual’s overall level of functioning, taking into consideration psychological, social, and
occupational functioning. Impairments in functioning due to physical or environmental
limitations are not considered. American Psychiatric Association, Diagnostic & Statistical
Manual of Mental Disorders - Fourth Edition, Text Revision 32-33 (4th ed. 2000) (DSM-IV).
A GAF of 51-60 corresponds with “moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR difficulty in social, occupational or school functioning
(e.g., few friends, conflicts with peers or co-workers).” Id. at 34.
7
A GAF of 41-50 corresponds with “serious symptoms OR any serious impairment in social,
occupational, or school functioning.” Id.

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made good eye contact. In September 2014, plaintiff again reported that he was
doing “terrible” and complained of “stress, anger, anxiety.” (Tr. 384). He described
his mood as agitated; his affect was incongruent. Dr. Kohler again changed
plaintiff’s medications and directed him to continue in counseling and case
management. In October 2014, plaintiff reported that his medication caused
agitation. However, he was sleeping well. (Tr. 382). Despite complaints of agitation
and restless leg syndrome, his psychomotor activity during the session was
unremarkable, he made good eye contact, and his thought content was goal
directed. He was not experiencing hallucinations. His mood was euthymic and his
affect was congruent. Dr. Kohler assigned a GAF score of 60,8 and modified
plaintiff’s medications.
On October 13, 2014, Bootheel Counseling Service completed an annual
psychosocial assessment (Tr. 356-371) and treatment plan (Tr. 372-75). Plaintiff
reported that his “manic depression” was “pretty bad lately,” and that he had low
energy and poor sleep. (Tr. 369). He wanted to continue receiving services in order
to maintain his abstinence from substance use, work on anxiety and depression,
and maintain his support group. He opined that he had a tendency to allow his
depression to get the best of him. He stated that he was living with his significant
other and was satisfied with this situation. He was able to care for himself and
there were “not any noted concerns . . . regarding symptoms of threat to personal
health or safety.” (Tr. 359). Plaintiff stated that physical pain, social anxiety and
finances limited his ability to engage in recreational and community activities.

8

A GAF of 51-60 corresponds with “moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR difficulty in social, occupational or school functioning
(e.g., few friends, conflicts with peers or co-workers).” DSM-IV at 34.

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However, his relationships with family members were good and he frequently
communicated with his daughter. His concentration was “fairly good” and his
depression was “medium.” (Tr. 364). He still had auditory and visual hallucinations,
flight of ideas, racing thoughts, and unspecified “unusual” thought, but he denied
suicidal or homicidal ideation. He was described as “making progress with
managing his mental health skills,” “working through family issues in therapy,”
participating in services, and utilizing his coping skills. On mental status
examination, plaintiff was noted to have a normal mood with congruent affect,
intact memory, normal speech, and friendly, cooperative behavior. He successfully
recalled three items after five minutes and completed serial sevens. (Tr. 365-66).
He denied any current substance use. (Tr. 366). He was taking his medications as
prescribed. (Tr. 367). His diagnoses were schizoaffective disorder, moderate;
anxiety disorder, moderate; PTSD, moderate; and opioid dependence, moderate.
He was assessed as having moderate, enduring problems related to the social
environment, the legal/crime system, the economic realm, the occupational realm,
and unspecified “other” psychosocial/environmental problems. He received a DLA9
score of 45. Plaintiff’s treatment goals included keeping his anxiety and anger below
a level 5 on a 10-point scale for five days a week. (Tr. 373). Dr. Kohler signed off
on the psychosocial assessment. (Tr. 371).
9

“The Daily Living Activities (DLA) Functional Assessment is a functional assessment . . .
designed to assess what daily living areas are impacted by mental illness or disability.” Willa
S. Presmanes, Beyond Global Assessment of Functioning: Ensuring Valid Scores and
Consistent Utilization for Healthcare Report Cards, https://www.thenationalcouncil.org/wpcontent/uploads/2012/11/DLA-Sample.pdf (visited June 13, 2017). As of April 1, 2014, in
order to be admitted to community psychiatric rehabilitation programs in Missouri, adults
must have a qualifying diagnosis and a DLA score of 40 or below. Missouri Division of
Behavioral Health, Bulletin No. FY 14-Clinical 28, Using the DLA-20 to Establish Eligibility for
Community Psychiatric Rehabilitation Programs, § 3.1.1.2
https://dmh.mo.gov/docs/ada/dla20eligibilityforcprclinicalbulletin28.pdf (visited June 13,
2017).

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In November 2014, plaintiff told Dr. Kohler that “all [his] meds” were
“working well.” (Tr. 381). He had receive his first epidural steroid injection and his
back pain was reduced. He rated his mood at 7 to 8 on a 10-point scale. His
thought processes were goal-directed and he was not having hallucinations. His
mood was euthymic, with congruent affect. Dr. Kohler assigned a GAF score of
70.10 In January 2015, plaintiff reported that his back pain was largely helped by
injections. He rated his mood at level 7, and said that his energy level was good
and his sleep was “not bad.” (Tr. 379). His thought processes were goal-directed
and he was not having hallucinations. Once again, his mood was euthymic and his
affect was congruent. Dr. Kohler assigned a GAF score of 75.11

His presentation

was largely unchanged in February 2015 and Dr. Kohler again assigned a GAF score
of 75. (Tr. 377).
On

March

24,

2015,

Dr.

Kohler

completed

a

“Mental

Impairment

Questionnaire.” (Tr. 487-93). She listed plaintiff’s diagnosis as schizoaffective
disorder and assigned a GAF score of 70. When asked to identify plaintiff’s signs
and symptoms, Dr. Kohler checked a total of 24 symptoms, including difficulty
thinking, disturbance of affect, pathological aggressivity, hallucinations, manic
syndrome, emotional lability, and recurrent severe panic attacks. She also assessed
the extent of his limitations with respect to 21 work-related mental abilities and
aptitudes, opining that plaintiff was “seriously limited, but not precluded;” “unable
to meet competitive standards;” or had “no useful ability to function” for all but one
10

A GAF of 61-70 corresponds with “Some mild symptoms . . . OR some difficulty in . . .
social, occupational, or school functioning, . . . but generally functioning pretty well, has
some meaningful interpersonal relationships.” DSM-IV at 34.
11
A GAF of 71-80 corresponds with “transient and expectable reactions to psychosocial
stressors (e.g., difficulty concentrating after family argument); no more than slight
impairment in social, occupational, or school functioning (e.g., temporarily falling behind in
schoolwork).” DSM-IV at 34.

-19-

of the categories. In support of these limitations, Dr. Kohler cited plaintiff’s multiple
tattoos and facial piercings. She also opined that plaintiff had marked difficulties in
maintaining social functioning and maintaining concentration, persistence or pace,
and had had three episodes of decompensation within a 12-month period, each
lasting at least two weeks. She opined that he would miss work four days a month.
III. The ALJ’s Decision
In the decision issued on May 15, 2015, the ALJ made the following findings:
1.

Plaintiff met the insured status requirements of the Social Security Act
through March 31, 2016.

2.

Plaintiff did not engage in substantial gainful activity from his alleged
onset date of October 31, 2013.

3.

Plaintiff has the following severe impairments: degenerative disc
disease of the lumbar spine, obesity, schizoaffective disorder with
bipolar features, anxiety disorder not otherwise specified, PTSD, pain
disorder, and polysubstance dependence.

4.

Plaintiff does not have an impairment or combination of impairments
that meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

5.

Plaintiff has the residual functional capacity to perform light work, as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except he is
unable to climb ladders, ropes or scaffolds; is limited to occasional
climbing of stairs and ramps; is limited to occasional stooping,
kneeling, crouching and crawling; must avoid hazards; is limited to
occasional interaction with the public and co-workers; and requires a
low stress job, defined as work that involves only occasional decisionmaking and only occasional changes in the work setting.

6.

Plaintiff is unable to perform any past relevant work.

7.

Plaintiff was 40 years old on the alleged disability onset date and 42
years old at the time of the decision, and thus is a younger individual.

8.

Plaintiff has a high school education and is able to communicate in
English.

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
-20-

supports a finding that plaintiff is not disabled, whether or not he has
transferable job skills.
10.

Considering plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that plaintiff can perform.

11.

Plaintiff has not been under a disability within the meaning of the
Social Security Act from October 31, 2013, through the date of the
decision.

(Tr. 20-55).
IV.

Legal Standards

The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds it possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, the Court must affirm
the decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The

-21-

Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). “Each step in the disability determination entails a separate analysis and
legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment,
and (3) his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at
942. If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning
capacity (>RFC=), which is the most a claimant can do despite her limitations.@
Moore, 572 F.3d at 523 (citing 20 C.F.R. ' 404.1545(a)(1)). “RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
-22-

frequency of the pain; (3) the precipitating and aggravating factors; (4) the
dosage,

effectiveness,

and

side

effects

of

medication;

(5)

any

functional

restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.” Buckner v. Astrue, 646
F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted). “Although ‘an ALJ
may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them,’ the ALJ may find that
these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations
and set forth the inconsistencies in the record which caused the ALJ to reject the
claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v.
Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to his past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove his RFC and establish
that he cannot return to his past relevant work. Moore, 572 F.3d at 523; accord
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within

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the national economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See
also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by his impairment from doing any other work,
the ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff asserts that the ALJ improperly determined that he had the residual
functional capacity to perform light work and improperly discounted Dr. Kohler’s
assessment of his limitations.
A. Residual Functional Capacity
“The ALJ bears the primary responsibility for determining a claimant’s RFC
and because RFC is a medical question, some medical evidence must support the
determination of the claimant’s RFC.” Id. (citation omitted). The ALJ should obtain
medical evidence that addresses the claimant’s “ability to function in the
workplace.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001) (quoting Nevland v.
Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). “However, the burden of persuasion to
prove disability and demonstrate RFC remains on the claimant.” Id. Even though
the RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner. Cox v. Astrue, 495
F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946 (2006)).
Here, the ALJ determined that plaintiff had the RFC to perform light work,
which “involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds” and “requires a good deal of walking
or standing,” or “sitting most of the time with some pushing and pulling of arm or
leg

controls.”

20

C.F.R.

§

404.1567(b);
-24-

§

416.967(b).

In

reaching

this

determination, the ALJ acknowledged that plaintiff had degenerative disc disease
and routinely displayed tenderness to the lumbar spine on palpation, reduced range
of motion, and an antalgic gait. However, plaintiff routinely displayed normal
sensation, motor function, balance, and reflexes and had nearly full muscle
strength and tone. Furthermore, no provider ever noted that plaintiff appeared to
be in distress. At his last physical examination in March 2015, plaintiff had a normal
gait and was able to sit and rise from seated without difficulty. In addition, plaintiff
reported that his pain was significantly reduced by epidural steroid injections and
medication.
The ALJ also determined that plaintiff’s daily activities were consistent with
the capacity to perform light work. Plaintiff took care of his disabled father and
completed household chores and yard work. He played pool, went fishing, collected
scrap metal, and did tattooing and piercing. Although plaintiff stated in his Function
Report that he used a cane “all the time,” (Tr. 260), he subsequently told a medical
provider he only used the cane when walking distances of 50 feet or more (Tr.
458). The ALJ concluded that plaintiff’s “extensive and diverse activities of daily
living” demonstrated that he was able to ambulate effectively without a cane. (Tr.
52).
Plaintiff relies on an earlier ALJ decision which found that plaintiff had the
RFC to perform sedentary, rather than light, work. However, an ALJ is not bound by
the findings of a prior administrative determination which was based on a
claimant’s disability status at an earlier time. Charmichael v. Astrue, 1:09cv123
DDN, 2011 WL 285808, at *8 (E.D. Mo. Jan. 24. 2011) (citing Ply v. Massanari,
251 F.3d 777, 779 (8th Cir. 2001)). Plaintiff’s argument that, as a general matter,
-25-

degenerative disc disease worsens over time does not demonstrate that, in his
case, his condition actually deteriorated during the period under consideration,
especially as the medical evidence supports a finding that his symptoms improved
with medication and injections.
The ALJ’s RFC determination is supported by substantial evidence in the
record as a whole.
B. Treating Psychiatrist’s Opinion
The ALJ gave limited weight to Dr. Kohler’s March 2015 assessment of
plaintiff’s mental capacity to perform work-related functions, noting that the
limitations she found were inconsistent with her own treatment notes and those of
other providers.
The opinion of a treating physician is generally afforded “controlling weight if
that opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
the record.” Chesser v. Berryhill, --- F.3d ----, 2017 WL 2485213, at *2 (8th Cir.
June 9, 2017) (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
Where an ALJ assigns less than controlling weight to the opinion of a treating
source, the ALJ must give good reasons for doing so. Id. (citing Anderson v. Astrue,
696 F.3d 790, 793 (8th Cir. 2012) (quotations omitted). Good reasons for assigning
lesser weight to the opinion of a treating source exist where “the treating
physician’s opinions are themselves inconsistent,” or where “other medical
assessments are supported by better or more thorough medical evidence.” Id.
(citations and internal quotations omitted).

-26-

The ALJ concluded that Dr. Kohler’s extreme limitations in March 2015 were
inconsistent with her documented findings during the eight prior mental status
examinations and those of Dr. Palepu before her. Progress notes reflect that
plaintiff consistently presented with good grooming, maintained good eye contact,
generally had normal speech patterns, displayed intact cognition and goal-directed
thought processes, and did not display unusual psychomotor activity. Furthermore,
as treatment progressed, Dr. Kohler assigned higher GAF scores, reflecting her
assessment that plaintiff’s functioning had improved. Dr. Kohler’s March 2015
assessment was also inconsistent with Dr. Kinder’s assessment in January 2015, in
which plaintiff presented as calm and cooperative, with intact frustration tolerance,
good cognitive endurance, fluent, logical and sequential speech, and grossly intact
attentional capacity. (Tr. 482-83).
Plaintiff argues that Dr. Kohler’s opinion is bolstered by the assessment of
non-examining reviewer Dr. Morgan, who found that plaintiff had moderate
limitations in the activities of daily living. However, the other limitations assessed
by Dr. Morgan were much less severe than those of Dr. Kohler and did not preclude
the capacity to work. Thus, Dr. Morgan’s report does not support Dr. Kohler’s
assessment.
Dr. Kohler’s finding that plaintiff was emotionally withdrawn is inconsistent
with his daily and social activities. By his own report, plaintiff cared for his father,
interacted with his daughter, lived with his girlfriend, networked with others
through Facebook, and provided tattoos and body piercing. Similarly, Dr. Kohler’s
assessment that plaintiff displayed pathological aggressiveness is unsupported by
any observation or report that he engaged in confrontational or disruptive behavior
-27-

or came to the attention of law enforcement. Finally, there is no evidence in the
record to support Dr. Kohler’s statement that plaintiff had three episodes of
decompensation lasting two weeks or more. During the period under review,
plaintiff did not seek emergency treatment for a psychiatric crisis and was not
hospitalized and there is no indication that plaintiff had a history of inpatient
psychiatric treatment; indeed, he denied such a history. (Tr. 364).
The Court cannot say that the ALJ erred in determining that Dr. Kohler’s
opinion was inconsistent with her own treatment notes and other substantial
evidence in the record.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of June, 2017.

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