Gates v. Astrue

Filing 20

MEMORANDUM: Substantial evidence in the record as a whole supports the decision of the ALJ finding plaintiff not disabled because the evidence of record does not support the presence of a disabling impairment. Accordingly, Judgment will be entered separately in favor of defendant in accordance with this Memorandum. Signed by Magistrate Judge Lewis M. Blanton on 3/25/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

BUDDY GATES,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 2:12CV 4 LMB

MEMORANDUM
This is an action under 42 U.S.C. § 405(g) for judicial review of defendant’s final decision
denying the application of Buddy Gates for Disability Insurance Benefits under Title II of the
Social Security Act and Supplemental Security Income under Title XVI of the Act. This case has
been assigned to the undersigned United States Magistrate Judge pursuant to the Civil Justice
Reform Act and is being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff filed a
Brief in support of the Complaint. (Doc. No. 14). Defendant filed a Brief in Support of the
Answer. (Doc. No. 19).
Procedural History
On August 24, 2007, plaintiff filed his application for benefits, claiming that he became
unable to work due to his disabling condition on February 1, 2007. (Tr. 199-211). This claim
was denied initially, and following an administrative hearing, plaintiff’s claim was denied in a
written opinion by an Administrative Law Judge (ALJ), dated August 23, 2010. (Tr. 56-57, 918). Plaintiff then filed a request for review of the ALJ’s decision with the Appeals Council of the
-1-

Social Security Administration (SSA), which was denied on November 25, 2011. (Tr. 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.
Evidence Before the ALJ
A.

ALJ Hearing
Plaintiff’s administrative hearing was held on August 17, 2010. (Tr. 25). Plaintiff was

present by video teleconference, and was represented by counsel. (Id.). Also present was
vocational expert Amy Salva. (Id.).
The ALJ examined plaintiff, who testified that he was thirty years of age, and was
incarcerated at Farmington Correctional Center at the time of the hearing. (Tr. 27). Plaintiff
stated that his incarceration began on April 22, 2009, and that he expected it to end on October
17, 2011. (Id.).
Plaintiff testified that he worked at thirty-two jobs in the ten-year period prior to his
incarceration. (Id.). Plaintiff stated that his longest position was working as a medication
delivery driver, which he performed for two years. (Id.).
Plaintiff testified that he was married, and had one son and three stepchildren. (Tr. 28).
Plaintiff stated that he did not have a daily work detail at his institution. (Id.). Plaintiff
testified that he was in the Sex Offender Program, which involved learning to control his
thoughts. (Id.). Plaintiff stated that the program offered anger management classes. (Id.).
Plaintiff testified that he is usually in class from 7:20 a.m. to 4:30 p.m. (Id.).
Plaintiff stated that he has been diagnosed with attention deficit hyperactivity disorder
(“ADHD”) in the past. (Id.). Plaintiff testified that he was not taking any medication for this

-2-

impairment at the time of the hearing, although he had reported symptoms of ADHD to medical
staff. (Tr. 29). Plaintiff stated that he was not taking any medications at the time of the hearing.
(Id.).
Plaintiff testified that he was serving time for second degree statutory rape. (Id.).
Plaintiff stated that he has had problems with substance abuse in the past. (Id.). Plaintiff
testified that his drug of choice was marijuana, and he also consumed alcohol. (Id.).
Plaintiff stated that he has asthma, and that he had quit smoking. (Id.). Plaintiff testified
that he used an inhaler three to four times a day. (Tr. 30).
Plaintiff stated that he was able to do everyday things, such as shop for groceries, prior to
his incarceration. (Id.). Plaintiff testified that he was not a good money manager, and that his
wife would have to help him manage his funds. (Id.).
Plaintiff stated that he enjoyed hunting and fishing. (Id.). Plaintiff testified that he also
enjoyed cooking with his stepson. (Id.). Plaintiff stated that his stepson would help him bake
cookies and cakes. (Tr. 31).
Plaintiff testified that he earned $8,912.00 in 2008 working at Premium Standard Farms.
(Id.). Plaintiff stated that he was fired form this position because he could not get along with his
boss. (Id.). Plaintiff testified that he has had serious problems with supervisors in the past due to
poor communication skills. (Id.). Plaintiff stated that he was working on this problem in the
prison program, although he did not believe he was making much progress. (Id.).
Plaintiff testified that he was able to lift 125 pounds with ease. (Tr. 32).
Plaintiff stated that he was six-feet, two inches tall, and weighed 186 pounds. (Tr. 33).
Plaintiff testified that he was unable to bend down and pick things off the floor due to

-3-

lower back pain, although he was able to squat. (Id.). Plaintiff stated that he was able to climb
stairs and ladders. (Id.). Plaintiff testified that he occasionally had difficulty balancing. (Id.).
Plaintiff stated that he shakes when he tries to hold onto things like a cup of coffee. (Tr. 34).
Plaintiff testified that he has problems with extreme heat. (Tr. 35).
Plaintiff stated that he has difficulty concentrating and remembering. (Id.). Plaintiff
testified that he often gets bored and forgets the task he was attempting to complete. (Id.).
Plaintiff stated that he has difficulty with his short-term memory. (Id.).
Plaintiff testified that he expected to be in the sex offender program until December 5,
2010. (Tr. 36). Plaintiff stated that he worked in prison in the dining department. (Id.).
Plaintiff’s attorney examined plaintiff, who testified that he last worked at Premium
Standard Farms for a period of three to four months. (Id.). Plaintiff stated that he was terminated
from this position. (Tr. 37).
Plaintiff testified that in 2007, he worked at Iowa Steel and Wire. (Id.). Plaintiff stated
that he was terminated from this position because he had an argument with his boss. (Id.).
Plaintiff testified that, since February of 2007, he has had problems with anger and
explosions of anger. (Id.). Plaintiff stated that he experiences three to four such explosions of
anger every other month. (Id.). Plaintiff testified that, prior to his incarceration, he experienced
anger explosions about every other day. (Id.).
Plaintiff stated that he has had some mental health treatment. (Id.). Plaintiff testified that
he saw Dr. Jeffrey Harden in Kirksville, and received some other mental health treatment. (Tr.
38).
The ALJ next examined vocational expert Amy Salva, who testified that plaintiff has never

-4-

held any one position long enough to constitute substantial gainful activity (“SGA”). (Tr. 39).
Ms. Salva stated that the positions that come closest to SGA are: meat boner (medium, semiskilled, SVP 4); and furniture delivery driver (medium, unskilled, SVP 2). (Tr. 39-40).
The ALJ re-examined plaintiff, who testified that he completed high school and earned
some college credits. (Tr. 40). Plaintiff stated that he earned about eleven credit hours in college,
and then quit because he became bored. (Id.).
Plaintiff’s attorney examined plaintiff, who testified that he took LD classes in high school.
(Id.). Plaintiff stated that he was suspended a few times in high school due to his anger issues.
(Tr. 41).
The ALJ asked Ms. Salva to assume a hypothetical claimant with plaintiff’s background
and the following limitations: able to lift up to fifty pounds occasionally and twenty-five pounds
frequently; stand and walk six hours out of eight; sit six hours out of eight; unlimited ability to
push and pull with the extremities; unable to stoop; can occasionally balance, kneel, crouch, and
crawl; can frequently handle bilaterally; must avoid concentrated exposure to heat; limited to
simple, unskilled work of SVP 2 or less; limited contact with the general public, supervisors, and
coworkers. (Tr. 41-42). Ms. Salva testified that the claimant would be unable to return to
plaintiff’s past work. (Tr. 42). Ms. Salva stated that the claimant would be able to perform other
work, such as order filler, which was medium, unskilled, and has an SVP of 2 (175,000 positions
nationally, 6,000 positions in Missouri); farm worker, which is medium and unskilled (26,000
positions nationally, 400 in Missouri); retail marker, which is light (260,000 positions nationally,
5,000 in Missouri); and photocopy machine operator, which is light (70,000 positions nationally,
1,900 in Missouri). (Tr. 42-43).

-5-

The ALJ next asked Ms. Salva to assume the same hypothetical claimant, except that the
claimant is unable to work a full eight-hour workday and forty-hour workweek on an ongoing and
consistent basis. (Tr. 43). Ms. Salva testified that there would be no jobs that such an individual
could perform. (Id.).
Plaintiff’s attorney next examined Ms. Salva, who testified that a GAF score of 30 is
typically inconsistent with any competitive work. (Tr. 44). Ms. Salva stated that an individual
who had temper outbursts more than once per day, which involved yelling at other workers and
throwing things would not be tolerated in competitive employment. (Tr. 45).
The ALJ re-examined plaintiff, who testified that he had been experiencing anger issues
since he was eight or nine years old. (Id.). Plaintiff stated that he was working on learning to
control his anger in prison, and that he experienced anger blow-ups less often but his anger blowups were still severe. (Id.). Plaintiff testified that his anger has not really improved since he
stopped using marijuana and alcohol. (Tr. 46). Plaintiff stated that his anger outbursts are caused
by people talking about his family, or people telling him he needs to do something or telling him
that he is wrong. (Id.).
Plaintiff testified that he received treatment for his anger when he was younger. (Id.).
Plaintiff stated that he was placed on medication, but he still experienced blow-ups. (Id.).
Plaintiff testified that he was not taking any psychotropic medication in prison because the
mental health advisor had not recommended that he be put on medication. (Id.).
Plaintiff stated that he saw Dr. Harden because he was having “things in life that was
making [him] mad with [his] marriage and stuff like that.” (Tr. 47). Plaintiff testified that Dr.
Harden told him that his problems with anger stem from his childhood. (Id.).

-6-

B.

Relevant Medical Records
On August 22, 2007, plaintiff presented to Jeffrey Harden, D.O., for a psychiatric

examination in connection with his application for Medicaid services. (Tr. 371-73). Dr. Harden
indicated that plaintiff has been diagnosed with long-standing psychiatric disorder extending back
into his childhood. (Tr. 371). Dr. Harden stated that plaintiff was evaluated in 1996 and rendered
the diagnoses of ADHD predominantly hyperactive type; oppositional defiant disorder;1
depressive disorder; learning disability; and possible schizophreniform disorder.2 (Id.). Dr.
Harden indicated that plaintiff was evaluated in 2000, at which time he was diagnosed with
ADHD, oppositional defiant disorder, learning disability, bipolar disorder type II,3 and
questionable borderline mental retardation. (Id.). Plaintiff reported that he was capable of
performing employment, but was unable to sustain employment longer than six months because of
the adversarial and argumentative attitudes that he brings to the work place. (Id.). Plaintiff
indicated that he had worked at thirty-four jobs in his lifetime, and that he was fired from twentyeight of these jobs. (Id.). Plaintiff reported difficulties getting along with co-workers and
supervisors. (Id.). Plaintiff had taken medication in the past, but was not taking any medication
at the current time. (Id.). Plaintiff reported that he was capable of driving, cooking, laundry,
managing his own hygiene, and administering his own medications. (Tr. 371-72). Plaintiff

1

A disorder of childhood or adolescence characterized by a recurrent pattern of
negativistic, hostile, and disobedient behavior toward authority figures. Stedman’s Medical
Dictionary, 570 (28th Ed. 2006).
2

A disorder with essential features that are identical with those of schizophrenia, with the
exception that the duration is shorter than six months. See Stedman’s at 570.
3

An affective disorder characterized by the occurrence of alternating hypomanic and major
depressive episodes. Stedman’s at 568.
-7-

indicated that he enjoys hunting and racing his car. (Tr. 372). Plaintiff reported difficulty
managing his own money because he disregards bills in favor of other things. (Id.). Upon mental
status examination, plaintiff showed logical thought processes with no speech eccentricities, and
he displayed a well modulated affect. (Tr. 372-73). Plaintiff reported lifelong difficulties with
concentration. (Tr. 373). No abnormalities were noted with regard to plaintiff’s cognitive
functioning, concentration, or abstract thought. (Id.). Plaintiff showed significant insight into his
own employment limitations and into his own impulsive behaviors. (Id.). Plaintiff showed poor
insight into the dangers that he subjects his family to in terms of his speeding and racing on public
highways. (Id.). Plaintiff’s judgment to hypothetical social situations was appropriate, but his
judgment as to how he manages his motor vehicle on highways was poor. (Id.). Plaintiff’s
immediate recall was such that he was able to accurately recollect three facts following a five
minute delay, and his remote recall was such that he was able to accurately recollect four of the
most recent five presidents. (Id.). Dr. Harden diagnosed plaintiff with ADHD, principally
hyperactive type; polysubstance abuse (alcohol and marijuana) in partial remission; antisocial
personality traits; and a current GAF score of 30,4 and the highest GAF score for the past year of
30. (Id.). Dr. Harden stated that plaintiff presents identifying a lifelong history of impulsive
behaviors and severe difficulties accepting the authority of supervisors, teachers, and employers.
(Id.). Dr. Harden stated that plaintiff has markedly impaired judgment in a variety of areas in his
life. (Id.). Dr. Harden recommended that plaintiff be under ongoing psychiatric care and have his

4

A GAF score of 21 to 30 is indicative of behavior “considerably influenced by delusions
or hallucinations OR serious impairment in communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost
all areas (e.g., stays in bed all day; no job, home, or friends).” Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV), 32 (4th Ed. 1994).
-8-

ADHD treated definitively. (Id.).
Glen D. Frisch, M.D., a state agency physician, completed a Psychiatric Review
Technique on September 26, 2007, in which he expressed the opinion that plaintiff had mild
limitations in his activities of daily living, and moderate limitations in his ability to maintain social
functioning and ability to maintain concentration, persistence, or pace. (Tr. 385). Dr. Frisch also
completed a Mental Residual Functional Capacity Assessment, in which he expressed the opinion
that plaintiff was moderately limited in his ability to understand and remember detailed
instructions; carry out detailed instructions; maintain attention and concentration for extended
periods; work in coordination with or proximity to others without being distracted by them;
complete a normal workday and workweek without interruptions 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; accept instructions and respond
appropriately to criticism from supervisors; get along with co-workers or peers without
distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; and respond appropriately to changes in the
work setting. (Tr. 374-75). In his Functional Capacity Assessment, Dr. Frisch found that plaintiff
retained the ability to understand and remember simple instructions; can carry out simple work
instructions, maintain adequate attendance, and sustain an ordinary routine without special
supervision; can interact adequately with peers and supervisors in a work setting that has minimal
demands for social interaction; and can adapt to minor change in a simple work setting. (Tr.
376).
Plaintiff underwent an intake mental health screening upon his incarceration with the

-9-

Department of Corrections (“DOC”) on May 4, 2009.5 (Tr. 394). Plaintiff reported that he had
taken various medications until 2004, and that he had been on no medications since 2005. (Id.).
Plaintiff denied a history of suicide attempts. (Id.). Plaintiff also denied a history of physical or
mental abuse. (Id.). Upon mental status exam, plaintiff was alert, coherent, and well-oriented.
(Id.). Plaintiff’s mood was euthymic and his affect was congruent. (Id.). Plaintiff’s thought
process was logical, linear, and goal-directed. (Id.). Plaintiff’s reality testing was intact, with no
indication of hallucination, delusion, or mania. (Id.). Plaintiff denied suicidal or homicidal
ideation. (Id.). The examiner stated that there were not blatant signs or symptoms presented,
observed, or endorsed which were consistent with a mental disorder at that time. (Id.). No
follow-up was scheduled. (Id.).
During a November 12, 2009 DOC evaluation, plaintiff’s behavior was described as
pleasant and appropriate. (Tr. 402).
Plaintiff requested to be seen while in the DOC on January 21, 2010, at his wife’s
suggestion. (Tr. 397). Plaintiff reported that he was evaluated in the DOC in 2001 and 2009, and
that he saw over twelve psychiatrists on the outside in between. (Id.). Plaintiff complained of
poor sleep (“two hours sleep a night”), and problems concentrating. (Id.). Plaintiff reported a
past history of alcohol and cannabis abuse. (Id.). Plaintiff described himself as easily irritated.
(Id.). Upon examination, plaintiff was cooperative, and open to suggestions of ways to deal with
his mood. (Id.). Plaintiff was using distorted thoughts to keep himself upset. (Id.). Plaintiff
reported that he was sexually abused by his sister when he was nine years old but his parents did

5

The credentials of the examining mental health treatment providers at the DOC are not
provided. Both parties, however, rely on this evidence.
- 10 -

nothing to his sister. (Id.). Plaintiff denied auditory hallucinations, although he reported them in
the past. (Id.). Plaintiff’s speech was within normal limits, and his remarks were appropriate.
(Id.). Plaintiff denied any current homicidal or suicidal thoughts or plans, although he thought
about shooting himself in the past. (Id.). The examiner stated that plaintiff was feeling irritable
but denying any homicidal or suicidal thoughts or plans. (Id.). Plaintiff was encouraged to
exercise on a regular basis to decrease stress and improve his mood. (Id.). Plaintiff was also
encouraged to sign up for a class. (Id.).
On March 16, 2010, plaintiff reported that he was having problems with “racing thoughts,
internal fears, and trust.” (Tr. 397). Plaintiff reported that he has been able to handle his racing
thoughts with exercise, however he feared facing his family when he leaves the DOC. (Id.).
Upon examination, plaintiff was worried but cooperative and open to suggestions. (Tr. 398).
Plaintiff’s remarks were appropriate, his speech was within normal limits, and he denied any
homicidal or suicidal thoughts or plans. (Id.). Plaintiff was managing his racing thoughts with
exercise. (Id.). Plaintiff was encouraged to continue exercising on a regular basis. (Id.). Ways
to challenge his negative, cognitive distortions were discussed. (Id.).
Plaintiff underwent pulmonary function testing on April 21, 2010, which was suggestive of
asthma. (Tr. 409-10). Plaintiff was prescribed an inhaler. (Tr. 410).

The ALJ’s Determination
The ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through March 31, 2013.

2.

The claimant has not engaged in substantial gainful activity since February 1,
- 11 -

2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3.

The claimant has the following severe impairments: attention deficit hyperactivity
disorder, antisocial personality disorder, polysubstance abuse in remission, and
asthma (20 CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c) in that he can lift and carry up to 50
pounds occasionally and 25 pounds frequently; can stand and walk 6 hours total in
an 8 hour workday and sit 6 hours total as well; has an unlimited ability to push or
pull with the extremities; cannot stoop and can only occasionally balance, kneel,
crouch, or crawl; can frequently but not continuously handle bilaterally; must
avoid concentrated exposure to heart; can only perform simple, unskilled work of
SVP2 or less due to a poor concentration ad memory, and must have only limited
contact with the general public, supervisors and coworkers.

6.

The claimant has no past relevant work (20 CFR 404.1565 and 416.965).

7.

The claimant was born on March 1, 1980 and was 26 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date
(20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 404.1568 and 416.968).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social Security Act,
from February 1, 2007, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

(Tr. 11-17).
- 12 -

The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability insurance benefits
protectively filed on August 15, 2007, the claimant is not disabled under sections 216(I) and
223(d) of the Social Security Act.
(Tr. 17).

Discussion
A.

Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to

the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner’s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner’s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996). “[T]he court must also take into consideration the weight of the evidence
in the record and apply a balancing test to evidence which is contrary.” Burress v. Apfel, 141
F.3d 875, 878 (8th Cir. 1998). The analysis required has been described as a “searching inquiry.”
Id.

B.

The Determination of Disability
The Social Security Act defines disability as the “inability to engage in any substantial
- 13 -

gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 416 (I) (1) (a); 42 U.S.C. § 423 (d) (1) (a). The claimant
has the burden of proving that s/he has a disabling impairment. See Ingram v. Chater, 107 F.3d
598, 601 (8th Cir. 1997).
The SSA Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 14142, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d. 119 (1987); Fines v. Apfel, 149 F.3d 893, 894-895
(8th Cir. 1998). First, it is determined whether the claimant is currently engaged in “substantial
gainful employment.” If the claimant is, disability benefits must be denied.
See 20 C.F.R. §§ 404.1520, 416.920 (b). Step two requires a determination of whether the
claimant suffers from a medically severe impairment or combination of impairments.
See 20 C.F.R §§ 404.1520 (c), 416.920 (c). To qualify as severe, the impairment must
significantly limit the claimant’s mental or physical ability to do “basic work activities.” Id. Age,
education and work experience of a claimant are not considered in making the “severity”
determination. See id.
If the impairment is severe, the next issue is whether the impairment is equivalent to one of
the listed impairments that the Commissioner accepts as sufficiently severe to preclude substantial
gainful employment. See 20 C.F.R. §§ 404.1520 (d), 416.920 (d). This listing is found in
Appendix One to 20 C.F.R. 404. 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be impaired. See
20 C.F.R. §§ 404.1520 (d), 416.920 (d). If it does not, however, the evaluation proceeds to the

- 14 -

next step which inquires into whether the impairment prevents the claimant from performing his
or her past work. See 20 C.F.R. § 404.1520 (e), 416.920 (e). If the claimant is able to perform
the previous work, in consideration of the claimant’s residual functional capacity (RFC) and the
physical and mental demands of the past work, the claimant is not disabled. See id. If the
claimant cannot perform his or her previous work, the final step involves a determination of
whether the claimant is able to perform other work in the national economy taking into
consideration the claimant’s residual functional capacity, age, education and work experience.
See 20 C.F.R. §§ 404.1520 (f), 416.920 (f). The claimant is entitled to disability benefits only if
s/he is not able to perform any other work. See id. Throughout this process, the burden remains
upon the claimant until s/he adequately demonstrates an inability to perform previous work, at
which time the burden shifts to the Commissioner to demonstrate the claimant’s ability to perform
other work. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
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 “record 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 “especially 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

- 15 -

from no limitation to a level of severity which is incompatible with the ability to perform workrelated 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 a residual
functional capacity assessment. See 20 C.F.R. §§ 404.1520a (c)(3), 416.920a (c)(3).
C.

Plaintiff’s Claims
In his sole claim, plaintiff argues that, in determining plaintiff’s mental RFC, the ALJ erred

in relying on the findings of a non-examining state agency physician.
RFC is what a claimant can do despite his limitations, and it must be determined on the
basis of all relevant evidence, including medical records, physician’s opinions, and claimant’s
description of his limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). Although
the ALJ bears the primary responsibility for assessing a claimant’s RFC based on all relevant
evidence, a claimant’s RFC is a medical question. Hutsell v. Massanari, 259 F.3d 707, 711 (8th
Cir. 2001) (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). Therefore, an ALJ is
required to consider at least some supporting evidence from a medical professional. See Lauer,
245 F.3d at 704 (some medical evidence must support the determination of the claimant’s RFC);
Casey v. Astrue, 503 F.3d 687, 697 (the RFC is ultimately a medical question that must find at
least some support in the medical evidence in the record). An RFC determination made by an

- 16 -

ALJ will be upheld if it is supported by substantial evidence in the record. See Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006).
The ALJ made the following determination with regard to plaintiff’s RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c) in that he can lift and carry up to 50
pounds occasionally and 25 pounds frequently; can stand and walk 6 hours total in
an 8 hour workday and sit 6 hours total as well; has an unlimited ability to push or
pull with the extremities; cannot stoop and can only occasionally balance, kneel,
crouch, or crawl; can frequently but not continuously handle bilaterally; must
avoid concentrated exposure to heart; can only perform simple, unskilled work of SVP2
or less due to a poor concentration and memory, and must have only limited
contact with
the general public, supervisors and coworkers.
(Tr. 13).
In determining plaintiff’s RFC, the ALJ first assessed the credibility of plaintiff’s subjective
complaints of pain and limitations under Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
Polaski requires the consideration of: (1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness and side effects of medication; and (5) functional restrictions. 739 F.2d at 1322.
The ALJ noted that the objective medical evidence did not support plaintiff’s allegations
of disability. Although the ALJ may not discount subjective complaints solely because they are
not fully supported by the objective medical evidence, the lack of supporting objective medical
evidence may be considered as a factor in evaluating the claimant’s credibility. See CurranKicksey v. Barnhart, 315 F.3d 964, 968 (8th Cir. 2003). The ALJ first noted that there is no
evidence of a back impairment or any objective evidence of a physical impairment other than
asthma. (Tr. 14). Plaintiff does not challenge the ALJ’s determination with regard to plaintiff’s
physical impairments.
- 17 -

With regard to plaintiff’s allegations regarding his mental impairments, the ALJ first noted
that plaintiff was described throughout the record as “patient and polite,” “cooperative” and
“pleasant” with “appropriate” behavior. (Tr. 270, 397, 402). The ALJ indicated that there is no
evidence that plaintiff failed to get along with any examiner, and he cooperated fully with the ALJ.
(Tr. 14). The ALJ stated that this is probative in this case, where plaintiff’s primary allegation
relates to his inability to get along with others. (Id.).
Plaintiff argues that the ALJ erred in noting that plaintiff did not engage in inappropriate
behavior. “While the ALJ’s observations cannot be the sole basis for his decision, it is not an
error to include his observations as one of several factors.” Lamp v. Astrue, 531 F.3d 629, 632
(8th Cir. 2008). In this case, as will be discussed further below, the ALJ did not rely solely on his
own observations regarding plaintiff’s behavior in making his decision. Rather, the ALJ properly
pointed out plaintiff’s lack of inappropriate behavior as one of many factors detracting from the
credibility of his subjective complaints.
The ALJ next pointed out that there is little medical evidence from mental health
professionals despite plaintiff’s allegations of disabling mental impairments that have existed since
childhood. This is an appropriate consideration, because the fact that a claimant fails to seek
regular medical treatment disfavors a finding of disability. See Gwathney v. Chater, 104 F.3d
1043, 1045 (8th Cir. 1997).
The ALJ noted that the few treatment records that are present reveal that plaintiff’s mental
status was quite good. (Tr. 14). For example, during a May 2009 mental evaluation at the DOC,
it was noted that plaintiff had no signs or symptoms presented, observed, or endorsed that were
consistent with a mental disorder. (Tr. 14, 394). Plaintiff’s subsequent examinations also failed

- 18 -

to reveal any significant symptoms of a mental impairment. (Tr. 397-98). Plaintiff was advised to
simply exercise and attend classes. (Id.). The ALJ also properly pointed out that plaintiff was
taking no medications, and that plaintiff did not, therefore, have any medication side effects. (Tr.
16).
The ALJ next discussed plaintiff’s daily activities. (Tr. 16). The ALJ noted that plaintiff’s
2007 function report reveals that plaintiff was able to care for himself and his step-son, and that
his daily activities were not “terribly limited.” (Tr. 16, 281-96). Plaintiff testified that, prior to his
incarceration, he was able to do everyday things, such as shop for groceries, and that he enjoyed
hunting, fishing, and cooking with his stepson. (Tr. 30). In addition, the ALJ properly pointed
out that plaintiff was able to complete two years of college.6 (Tr. 15, 254).
The ALJ also discussed the medical opinion evidence. The ALJ has the role of resolving
conflicts among the opinions of various treating and examining physicians. Pearsall v. Massanari,
274 F.3d 1211, 1219 (8th Cir. 2001). “‘[An] ALJ may reject the opinion of any medical expert
where it is inconsistent with the medical record as a whole.’” Finch v. Astrue, 547 F.3d 933, 938
(8th Cir. 2008) (quoting Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002)). See also
Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005) (finding that the ALJ had not simply
substituted his opinion for the medical evidence when determining the claimant's RFC, but had
assessed that RFC based on all the relevant evidence).
The ALJ noted that no treating physician has provided an opinion. (Tr. 16). The ALJ
acknowledged that Dr. Harden examined plaintiff in August 2007, and assessed a GAF score of

6

Although plaintiff testified at the administrative hearing that he earned only eleven hours
of college credits (Tr. 40), plaintiff reported in his function report that he completed two years of
college. (Tr. 254).
- 19 -

30. (Tr. 15). The ALJ stated, however, that Dr. Harden’s assessment is based on one
examination and that the record does not support Dr. Harden’s assessment. (Id.). This finding is
supported by the record.
Plaintiff saw Dr. Harden for a one-time examination in connection with his application for
Medicaid benefits. (Tr. 371-73). Upon mental status examination, plaintiff showed logical
thought processes with no speech eccentricities; displayed a well modulated affect; normal
cognitive functioning, concentration, and abstract thought; significant insight into his own
employment limitations and into his own impulsive behaviors, but poor insight into the dangers
that he subjects his family to in terms of his speeding and racing on public highways; and his
judgment to hypothetical social situations was appropriate, but his judgment as to how he
manages his motor vehicle on highways was poor. (Tr. 372-73). Dr. Harden diagnosed plaintiff
with ADHD, principally hyperactive type; polysubstance abuse (alcohol and marijuana) in partial
remission; antisocial personality traits; and a current GAF score of 30, with the highest GAF score
for the past year of 30. (Tr. 373). The ALJ properly pointed out that the record, including Dr.
Harden’s own mental status examination, did not support such a low GAF score. (Tr. 15). The
ALJ noted that a GAF score of 21 to 30 is indicative of behavior “considerably influenced by
delusions or hallucinations OR serious impairment in communication or judgment (e.g.,
sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to
function in almost all areas (e.g., stays in bed all day; no job, home, or friends).” (Id.).7 The ALJ
noted that there was no evidence of delusion or hallucination, plaintiff was able to communicate
effectively with everyone in the record and is not suicidal, he functions adequately with his family,

7

See DSM-IV at 32.
- 20 -

cooperated with mental health professionals while incarcerated, was able to graduate high school
and complete two years of college, and engages in significant daily activities. (Id.).
The ALJ indicated that he was assigning “great weight” to the opinion of Dr. Frisch, the
state agency physician, as his opinion was well-supported by the medical record and consistent
with the objective evidence. (Tr. 16). Plaintiff contends that the ALJ erred in relying on the
opinion of a non-examining state agency physician.
Dr. Frisch completed a Psychiatric Review Technique on September 26, 2007, in which he
expressed the opinion that plaintiff had mild limitations in his activities of daily living, and
moderate limitations in his ability to maintain social functioning and ability to maintain
concentration, persistence, or pace. (Tr. 385). Dr. Frisch also completed a Mental Residual
Functional Capacity Assessment, in which he expressed the opinion that plaintiff was moderately
limited in his ability to understand and remember detailed instructions; carry out detailed
instructions; maintain attention and concentration for extended periods; work in coordination with
or proximity to others without being distracted by them; complete a normal workday and
workweek without interruptions 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; accept instructions and respond appropriately to criticism from
supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral
extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness; and respond appropriately to changes in the work setting. (Tr. 374-75). In his
Functional Capacity Assessment, Dr. Frisch found that plaintiff retained the ability to understand
and remember simple instructions; can carry out simple work instructions, maintain adequate

- 21 -

attendance, and sustain an ordinary routine without special supervision; can interact adequately
with peers and supervisors in a work setting that has minimal demands for social interaction; and
can adapt to minor change in a simple work setting. (Tr. 376).
State agency consultants are highly qualified physicians, psychologists, and other medical
specialists who are also experts in Social Security disability evaluation, and as such, the ALJ must
consider their findings as opinion evidence. 20 C.F.R. §§ 404.1527(e)(2)(I), 416.927(e)(2)(I). In
evaluating the opinion of the state agency physician, the ALJ will weigh the findings of the
consultant using the relevant factors in paragraphs (a) through (e) in 20 C.F.R. § 404.1527 and §
416.927, as the ALJ would in evaluating the opinions of other medical sources. Id. Just as with
the opinions of other medical sources, the ALJ must explain the weight given to the opinions of
the state agency consultant, unless a treating source’s opinion is given controlling weight. 20
C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). In determining the weight to be given to the state
agency consultant’s opinion, the ALJ “must minimally articulate his reasons for crediting or
rejecting evidence of disability.” Ingram v. Chater, 107 F.3d 598, 601 (8th Cir. 1997) (quoting
Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992)) (internal citations omitted).
Plaintiff contends that Dr. Frisch offered inconsistent conclusions. Specifically, plaintiff
notes that Dr. Frisch found that plaintiff had moderate limitations in many areas, yet concluded
that plaintiff was capable of understanding and remembering simple instructions, carrying out
simple work instructions, maintaining adequate attendance and sustaining an ordinary routine
without special supervision, interacting adequately with peers and supervisors in a work setting
that has minimal demands for social interaction, and adapting to minor changes in a simple work
setting. (Tr. 374-76). Dr. Frisch’s functional capacity assessment, however, is consistent with

- 22 -

the moderate limitations he found. For example, he limited plaintiff to understanding and
remembering, and carrying out only simple instructions; and limited plaintiff to a work setting that
has minimal demands for social interaction. (Tr. 376).
The ALJ in this case properly considered the opinions of Dr. Frisch. Dr. Frisch
specifically addressed aspects of the record upon which he relied in reaching his conclusions. Dr.
Frisch discussed the report of Dr. Harden, including his findings on mental status examination.
Significantly, the ALJ did not rely exclusively on the opinions of Dr. Frisch, but, rather evaluated
the record as a whole.
In sum, the RFC determined by the ALJ is supported by substantial evidence on the record
as a whole. The ALJ conducted a proper credibility analysis and found plaintiff’s subjective
allegations were not entirely credible. The ALJ’s RFC determination was based on plaintiff’s
testimony, the objective medical record, and the opinion evidence, including the opinion of the
state agency physician.
The hypothetical posed to the vocational expert was consistent with the ALJ’s RFC
determination. The vocational expert testified that the hypothetical claimant could perform work
as an order filler, farm worker, and photocopy machine operator. (Tr. 42). Thus, the ALJ’s
decision finding plaintiff was not disabled is supported by substantial evidence.

Conclusion
Substantial evidence in the record as a whole supports the decision of the ALJ finding
plaintiff not disabled because the evidence of record does not support the presence of a disabling
impairment. Accordingly, Judgment will be entered separately in favor of defendant in
accordance with this Memorandum.
- 23 -

Dated this 25th day of March, 2013.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

- 24 -