Ruby v. Astrue

Filing 23

MEMORANDUM - For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 7/29/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

VERONICA S. RUBY,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner of Social Security
Defendant.

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No. 2:12 CV 84 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Veronica
S. Ruby for disability insurance benefits under Title II of the Social Security Act (the
Act), 42 U.S.C. § 401, et seq., and for supplemental security income under Title XVI of
that Act, § 1381, et seq. The parties have consented to the exercise of plenary authority
by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc.
9.) For the reasons set forth below, the decision of the Administrative Law Judge is
affirmed.

I. BACKGROUND
Plaintiff Veronica S. Ruby, born on May 28, 1974, filed applications for Title II
and Title XVI benefits on October 28, 2009. (Tr. 101-05.) She alleged an onset date of
May 30, 2008, due to mania, depression, and bipolar disorder. (Tr. 141). Plaintiff’s

1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. The court hereby substitutes Carolyn W. Colvin as defendant in her official
capacity. Fed. R. Civ. P. 25(d).

applications were denied initially on March 25, 2010, and she requested a hearing before
an ALJ. (Tr. 56-70.)
On June 24, 2011, following a hearing, the ALJ found plaintiff not disabled. (Tr.
13-27.) On October 4, 2012, the Appeals Council denied plaintiff’s request for review.
(Tr. 1-3.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

II. MEDICAL HISTORY
In September 2009, plaintiff began seeing nurse practitioner Gretchen Anderson at
Community Health Center. On September 30, 2009, plaintiff saw Nurse Anderson to
receive medication for bipolar disorder. Plaintiff noted that despite wheezing loudly at
night, she smoked one pack of cigarettes per day and was having difficulty quitting. She
also stated that she had not taken medication since 2000. Nurse Anderson found that
plaintiff did not meet the criteria for bipolar disorder but diagnosed her with depression.
Nurse Anderson prescribed Albuterol and Claritin for wheezing and Celexa and Chantix.2
She also noted plaintiff’s history of physically and mentally abusive relationships. (Tr.
201.)
On October 27, 2009, plaintiff reported back to Nurse Anderson for a follow-up.
She reported that she experienced an increased number of mood swings and that the
Chantix gave her strange dreams. She communicated that her mood was lighter but still
awoke angry and experienced outbursts. She also reported that she stopped smoking two
weeks earlier. Nurse Anderson increased plaintiff’s Celexa dosage but discontinued
Chantix. Nurse Anderson additionally noted that plaintiff was receiving counseling at
White Oaks. (Tr. 198-200.)
November 24, 2009, plaintiff met with Ted Oliver, M.S.W., L.C.S.W., and
underwent a mental health evaluation in order to receive Medicaid. She divulged that
between the ages of seventeen and twenty-five she had several psychiatric
hospitalizations. She alleged passive suicidal ideations, depressed mood, and anxiety

2

Celexa is used to treat depression. WebMD, http:www.webmd.com/drugs (last visited
June 3, 2013). Chantix is used to help quit smoking. Id.
- 2 - 

regarding public places. She endorsed symptoms of panic attacks including a racing
heart, nausea, dizziness, and sweating. Additionally, she complained of tearfulness,
irritability, low energy and motivation, and insomnia. She also reported to Mr. Oliver
that she had smoked since her teenage years and despite a recent diagnosis of
emphysema, was experiencing difficulty quitting her two packs per day habit. She
communicated to Mr. Oliver that prior to being prescribed Celexa the previous month she
drank twelve or more beers per day in order to relax. Mr. Oliver noted plaintiff’s flat
affect and depressed mood and that she appeared withdrawn and somewhat anxious. (Tr.
213-15.)
Mr. Oliver found that plaintiff had an extensive history of psychiatric problems
related to depression dating back to her early adolescence. He noted that she had a
limited employment history, an eleventh grade education and a GED. He explained that
plaintiff communicated she had not been employed since 2003 but that her longest job
was an over the road truck driver, lasting five years. He also found that plaintiff’s largest
source of support was her roommate.

He diagnosed plaintiff with severe major

depression without psychotic features, panic disorder with agoraphobia, and alcohol
abuse in early sustained remission and gave a GAF of 45.3 He stated that plaintiff would
benefit from access to health care for both primary health care and psychiatric needs. He
opined that plaintiff would be unable to work competitively on a full time basis and that
she would likely be unsuccessful working on a part-time basis. He further stated that her
prescription regimen did not fully address her symptoms. (Tr. 214-15.)

3

A GAF score, short for Global Assessment of Functioning, helps summarize a patient’s
overall ability to function. A GAF score has two components. The first component
covers symptom severity and the second component covers functioning. A patients GAF
score represents the worse of the two components.
A GAF score from 41 to 50 represents serious symptoms (such as thoughts of
suicide, severe obsessional rituals, frequent shoplifting), or any serious impairment in
social, occupational, or school functioning (such as the inability to make friends or keep a
job.) American Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders, 32-34 (4th ed. 2000).
- 3 - 

Also on November 24, 2009, plaintiff saw Nurse Anderson for a third monthly
check up. Plaintiff complained of increased panic attacks, depression, and reluctance to
leave her home. She reported that she quit smoking. Plaintiff communicated that she did
not attend her counseling appointments during the past two weeks and that she continued
to suffer from anger and anxiety. Nurse Anderson replaced the prescription for Celexa
with a prescription for Paxil.4 (Tr. 234-35.)
On December 15, 2009, plaintiff visited Nurse Anderson for a follow up. Plaintiff
told Nurse Anderson that she wore earplugs at night because the noise irritated her, that
her symptoms worsened since starting Paxil, and that she missed further counseling
appointments.

Nurse Anderson continued plaintiff on Paxil and also prescribed

Lamictal.5 (Tr. 231-32.)
On December 30, 2009, plaintiff saw Nurse Anderson and reported that she
tolerated Paxil and Lamictal well. She communicated that despite moodiness in the
morning, her symptoms improved.

Nurse Anderson refilled Paxil and increased

plaintiff’s Lamictal dosage. She also noted that plaintiff appeared more relaxed and
planned to see Ted Oliver at Mark Twain Behavioral Health. (Tr. 227-28.)
On January 29, 2010, plaintiff began outpatient psychiatric treatment with
psychiatrist Dr. Joseph Spalding, D.O. Plaintiff described waking up very angry,
throwing things and breaking things. Additionally she described panic upon leaving the
house and becoming short of breath due to feeling that people judge her. Plaintiff
informed Dr. Spalding of a previous diagnosis of bipolar disorder, her Paxil and Lamictal
prescriptions, and that her prescriptions had improved her symptoms. Plaintiff also
reported that she smoked marijuana daily and that she had been sober for two months but

4

Paxil is used to treat depression, panic attacks, obsessive-compulsive disorder, anxiety
disorders and posttraumatic stress disorder. WebMD, http:www.webmd.com/drugs (last
visited June 3, 2013).
5

Lamictal is used to prevent the extreme mood swings of bipolar disorder in adults.
WebMD, http:www.webmd.com/drugs (last visited June 3, 2013).
- 4 - 

drank two beers the previous evening. Dr. Spalding found that plaintiff had a very
dramatic childhood, was put into foster care, and had been previously jailed.

Dr.

Spalding noted that plaintiff was alert and oriented, her mood and affect was euthymic,
her flow of thought was logical and goal oriented and her content was negative for
suicidal or homicidal ideation, intent, or plan. (Tr. 245-46.)
Following the January 29, 2010, appointment, Dr. Spalding determined that
plaintiff had reported a clear manic history.

He diagnosed plaintiff with bipolar I

disorder depressed without psychotic features, panic disorder with agoraphobia,
posttraumatic stress disorder, and cannabis dependence and gave a GAF score of 45. Dr.
Spalding recommended plaintiff receive counseling at Mark Twain and return for a
follow up with him in a month. He increased plaintiff’s Paxil dosage, continued her on
Lamictal and advised her to discontinue marijuana use. (Tr. 246-47.)
On February, 9, 2010, plaintiff contacted Dr. Spalding by phone, complaining that
the increased dosage of Lamictal caused night sweats. Dr. Spalding recommended that
she decrease her Lamictal dosage. He ordered that if her symptoms did not improve she
was to contact him again. (Tr. 244.)
On February 24, 2010, plaintiff had another appointment with Dr. Spalding. She
divulged that she was applying for disability, that she had not worked since 2003, and
that she has held over sixty jobs in her lifetime. Regarding her family history she told Dr.
Spalding that she had been married three times, and that she had seven children with five
different fathers but only was able to see the youngest set of twins as the others had been
adopted. She reported that she had quit drinking, reduced her marijuana usage to once a
week but smoked two packs of cigarettes per day. Plaintiff additionally complained that
she felt more depressed and constantly tired. Dr. Spalding refilled her Lamictal and
replaced Paxil with Lexapro.6 He also instructed her to return in one month. (Tr. 24142.)

6

Lexapro is an antidepressant used to treat depression and anxiety. WebMD,
http:www.webmd.com/drugs (last visited June 3, 2013).
- 5 - 

On March 24, 2010, Stanley Hutson, Ph.D., submitted a Psychiatric Review
Technique form regarding plaintiff. He found that plaintiff’s medically determinable
impairments consisted of bipolar disorder, panic disorder with agoraphobia,
posttraumatic stress disorder, alcohol abuse in early sustained remission and cannabis
dependence. He stated that plaintiff suffered mild restriction with daily living activities,
moderate difficulty with maintaining social functioning and moderate difficulty with
maintaining concentration, persistence, or pace. (Tr. 251-62.)
On March 24, 2010, Dr. Hutson also submitted a Mental Residual Functional
Capacity Assessment. He concluded that plaintiff retained the ability to understand,
remember, and carry out simple work instructions; to maintain adequate attendance and
an ordinary routine without special supervision; to interact adequately with peers and
supervisors; and to adapt to most usual changes in a competitive work setting. (Tr. 265.)
On March 25, 2010, medical consultant Kelly Popp submitted a Physical Residual
Functional Capacity Assessment. She found that the plaintiff could push and pull an
unlimited amount, including operation of hand and foot control. She found that plaintiff
could carry fifty pounds occasionally and twenty-five pounds frequently, stand and walk
about six hours in an eight-hour workday, and sit about six hours. She also found that
plaintiff should avoid concentrated exposure to humidity and fumes, odors, dusts, gases,
and poor ventilation. 7

Ms. Popp noted that plaintiff did not allege any physical

impairments and found her primary diagnosis to be emphysema. In regards to plaintiff’s
exertional limitations, Ms. Popp stated that despite plaintiff’s recent emphysema
diagnoses she continued to smoke two packs of cigarettes per day and that plaintiff
claimed she had quit smoking and alleged she could walk farther than before. Ms. Popp
concluded that plaintiff was capable of handling medium exertional work. (Tr. 266-71.)
On August 31, 2010, plaintiff saw Dr. Spalding. She stated that she had submitted
an application for low income housing and felt that having her own residence would

7

In reviewing this form, the court had difficulty reading the “X”s in the marked boxes.
The existence of the “X”s is corroborated by the consistent findings of the ALJ in her
opinion. (Tr. 18-26.)
- 6 - 

improve her mood. She told him that despite her twin boys living in Quincy, Illinois,
with their father she was visiting them more often and that they would be moving in with
her when she acquired housing. She complained of being crabby and angry in the
morning because her roommate was waking her up with the television. Additionally, she
communicated that she rarely drank but smoked marijuana every other day. Dr. Spalding
continued plaintiff’s medication regimen. (Tr. 291-93.)
On October 26, 2010, plaintiff returned to Dr. Spalding and complained of
increased nightmares, sensitivity to noise, and difficulty sleeping. She divulged that she
failed to obtain low income housing. Additionally, she shared that the twins’ father
would no longer allow them to live with her but she was still seeing them once during the
week and on weekends in Quincy, Illinois. She stated that she got “pretty drunk” in the
beginning of October, but had not drank since, and that she had only smoked marijuana
twice in the past month. She continued to smoke cigarettes. Dr. Spalding noted that
plaintiff was alert and oriented during the appointment and that her mood and affect was
a bit restricted but fair.

He also stated that plaintiff was negative for suicidal or

homicidal ideation, intent or plan and that her insight and judgment were fair.

Dr.

Spalding continued plaintiff’s Lexapro, increased her Lamictal dosage, and prescribed
Restoril.8 (Tr. 288-90.)
On December 8, 2010, plaintiff visited Dr. Spalding for a fifth time. She told him
that she was feeling more depressed and tearful every morning. She explained that she
could not move into her own apartment due to lack of financial support because the
twins’ father was not allowing her to have custody of them. She also said that she
experienced paranoia and thought people constantly talked about her. She cited paranoia
as the primary reason she failed to attend work, causing her unemployment. She also
communicated that her roommate paid for her prescriptions and when he did not, she
went without them for one or two weeks. Dr. Spalding wrote a letter to her roommate,

8

Restoril is used to treat insomnia. WebMD, http:www.webmd.com/drugs (last visited
June 3, 2013).
- 7 - 

emphasizing the importance of her medications. Dr. Spalding noted that plaintiff was
alert and oriented throughout the appointment but that her mood and affect was depressed
and tearful. He also stated that she was negative for suicidal or homicidal ideation, intent
or plan. He refilled her Restoril and Lamictal prescriptions and increased her dosage of
Lexapro. (Tr. 285-87.)
On May 4, 2011, plaintiff saw Dr. Spalding. She communicated that she drank
about three times per month and smoked marijuana daily. She also stated, “If I drink, I
drink to get drunk.”

She stated that she was depressed because of her living

arrangements. Dr. Spalding indicated that plaintiff would have to pass a drug screening
to get any further prescription refills. (Tr. 329-30.)
On May 27, 2011, Dr. Spalding completed a Medical Source Statement detailing
plaintiff’s mental capacity to work and asserting that plaintiff’s disability began on May
30, 2008. He found that plaintiff suffered mild restrictions with understanding and
remembering simple instructions. She had moderate restrictions with performing simple
instructions; with her ability to make simple work-related decisions; with her ability to
understand, remember, and perform complex instructions; and with her ability to make
complex work-related decisions. He also determined that plaintiff had marked limitations
with interacting appropriately with supervisors, coworkers, and the general public; and
with responding appropriately to usual work situations and to changes in a routine work
setting. To make these findings, he relied on several factors, including her bipolar
disorder, panic disorder, depressive episodes, racing thoughts, distractibility, and multiple
hospitalizations due to suicide attempts, anger episodes with extreme agitation, suicidal
ideation, and violent behavior. He concluded that total abstinence from alcohol and
drugs would not significantly change plaintiff’s behaviors. Finally, he found that plaintiff
would be able to manage benefits in her best interest. (Tr. 324-26.)

Testimony at the Hearing
The ALJ conducted a hearing on June 3, 2011. (Tr. 13-53). Plaintiff testified to
the following. She is thirty-seven years old. She is five feet, eight inches tall and weighs
- 8 - 

210 pounds. She received her GED in May 1993. She is married but does not live with
her husband. She has seven children but does not have custody of them. Her first child
died in November 1993 from aspirating formula for which she was held responsible, and
since that time the State of Illinois has taken her children. (Tr. 35-38.)
She last worked in May 2008 as a cashier at Piccadilly but was fired for not
meeting all of her job duties. She did not get along with people at work or customers.
She has had at least thirty jobs in the past. Her employment generally lasts three to four
weeks at a time. She cannot maintain employment because she suffers severe depression
and cannot leave her house to go to work. During her longest term of employment, she
worked as a truck driver with four different companies but she was fired after the
insurance could no longer cover her due to wrecks and speeding tickets. She also failed
to meet delivery schedules. (Tr. 35-39.)
Her psychological treatment has been sporadic. She first received psychological
treatment at sixteen after trying to slice her wrist. She was in the hospital for two
months. In 2000, she sought psychiatric treatment for the loss of her children and her
employment problems. She received counseling and took medication. She did not
receive psychological treatment again until May 2009 with Dr. Anderson. Although she
continued to experience psychological problems between 2000 and 2009, she could not
afford the medication or stopped attending treatments because she did not feel that it was
helping. (Tr. 40-41.)
She currently takes mood stabilizers and depression medication but they have no
effect. She feels depressed four or five times a day, including when she awakens. She
cries two or three times a day when thinking about her children and her inability to
support and take care of herself or arguing with her roommate. (Tr. 41-43.)
On average, she showers once or twice per week. She lacks the motivation to
leave her bedroom to bathe. She has not brushed her teeth in three or four months. She
cannot care for herself and wishes she could improve her personal hygiene, talk to
people, maintain friendships, and support herself financially. At least once a month she
does not leave her bed for a week. (Tr. 43-45.)
- 9 - 

She thinks of killing herself at least two or three times per day but would not do it,
reasoning that “it’s a long term solution to a short term problem.” She feels anxious at
least once or twice per day. When she feels anxious, she sweats profusely, her heart
races, she cannot catch her breath, she turns red, and gets angry. Although going to the
back yard does not cause anxiety, the front yard causes anxiety because she does not want
her neighbors to see her. She does not like to talk to her neighbors. If her neighbors try
to talk to her, she gives short answers and makes excuses to return to her house. (Tr. 4547.)
Vocational Expert (VE) Robert G. Laskey also testified at the hearing. Plaintiff’s
last jobs were as a truck driver and cashier, which involve light and semi-skilled work.
The ALJ presented a hypothetical individual who must stay in her house one week per
month, cries three times a day for one to three hours, exhibits marked limitations with
interacting with the public, supervisors and co-workers, marked limitations in the ability
to respond to changes in the routine work setting, and moderate limitations in her ability
to make simple or complex work related decisions, and carry out simple or complex
instructions. The VE found that such a person would be unemployable. (Tr. 48-49.)
The ALJ further elaborated on the first hypothetical individual limiting her to
perform unskilled work and limited connections with co-workers, supervisors or the
general public. The VE responded that this person would also be unemployable. (Tr.
49.)
The ALJ provided a second hypothetical individual who was thirty-seven years
old, had her GED, had the ability to perform unskilled work, one to two step operations
and has limited contact with supervisors, co-workers and the general public. The VE
responded that such a person could not perform plaintiff’s past relevant work but could
perform as a document preparer, which is unskilled, sedentary work with about 68,000
positions in Missouri and 2,800,000 jobs nationally.

The VE noted that document

preparer falls under the occupational group of general office clerks in which there are a
couple of hundred different jobs requiring sedentary and light work. Additionally, the
VE stated that the hypothetical individual could perform within the general occupation
- 10 - 

group of elemental hand worker as a garment sorter, which is unskilled, light work with
about 8,600 jobs in Missouri and about 430,000 jobs nationally. The VE also noted the
individual could perform as an assembler of small products of which there are 30,000
positions in Missouri and 1,100,000 positions nationally.

He further stated that an

assembler of small products is within the occupational group of different assemblers and
fabricators, except for machine, electrical, electronic and precision assemblers, in which
there are three hundred different jobs. (Tr. 50-52.)
III. DECISION OF THE ALJ
On June 24, 2011, the ALJ issued a decision that plaintiff was not disabled. (Tr.
10-31.) At Step One of the prescribed regulatory decision-making scheme,9 the ALJ
found that plaintiff had not engaged in substantial gainful activity since May 30, 2008,
the alleged onset date. At Step Two, the ALJ found that plaintiff’s severe impairments
were bipolar disorder, panic disorder, posttraumatic stress disorder (PTSD), history of
alcohol abuse, cannabis dependence, history of emphysema, and obesity. (Tr. 15.)
At Step Three, the ALJ found that plaintiff had no impairments or combination of
impairments that met or was the medical equivalent of an impairment on the
Commissioner’s list of presumptively disabling impairments. (Tr. 16.)
The ALJ considered the record and found that plaintiff had the residual functional
capacity (RFC) to perform medium work but limited her to unskilled tasks and limited
contact with supervisors, co-workers, and the general public. At Step Four, the ALJ
found that plaintiff was unable to perform any past relevant work. (Tr. 18-26.)
At Step Five, the ALJ found plaintiff capable of performing jobs existing in
significant numbers in the national economy. (Tr. 26.)

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and

9

See below for explanation.
- 11 - 

are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she 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), 1382c(a)(3)(A); Pate-Fires, 564 F.3d 935, 942 (8th Cir. 2009). A five-step
regulatory framework is used to determine whether an individual is disabled. 20 C.F.R.
§§ 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing
the five-step process); Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. §§ 404.1520(a)(4)(i)-(iii).
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform her past
relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of
demonstrating she is no longer able to return to her PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.
404.1520(a)(4)(v).
- 12 - 

Id.; 20 C.F.R. §

V. DISCUSSION
Plaintiff argues that (1) the ALJ’s credibility determination regarding plaintiff was
erroneous; (2) the ALJ erred by improperly discounting the opinion of plaintiff’s treating
physician, Dr. Spalding; and (3) the ALJ erred in finding that plaintiff’s impairments did
not meet or equal Listing Impairment 12.04 or 12.06.

A. Plaintiff’s credibility
Plaintiff argues that the ALJ’s determination of plaintiff’s credibility regarding
the severity of her mental condition was patently erroneous.

The ALJ’s credibility findings must be supported by substantial evidence on the

record as a whole. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006); Tucker v.
Barnhart, 363 F.3d 781, 783 (8th Cir. 2004). The ALJ must give full consideration to all
of the relevant evidence on the Polaski v. Heckler factors and may not discredit
subjective complaints unless they are inconsistent with the evidence in the record as a
whole. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1986); Teague v. Astrue, 638
F.3d 611, 615 (8th Cir. 2011).
Plaintiff argues that the ALJ improperly relied on non-compliance when
discrediting her psychiatric symptoms. When an ALJ relies primarily on evidence of
noncompliance to discredit a claimant’s psychiatric symptoms, the reviewing court need
not defer to the ALJ’s decision on that issue. Watkins v. Astrue, 414 Fed.Appx. 894, 896
(8th Cir. 2011). However, the ALJ outlined numerous pieces of evidence and cited
multiple factors to support the credibility finding including plaintiff’s sporadic treatment
history, inconsistencies in the record indicating that plaintiff exaggerated her symptoms,
plaintiff’s limited work history, plaintiff’s non-compliance with treatment plans and the
fact that plaintiff’s condition has been stabilized by prescription medication.
The record indicates that plaintiff has exaggerated her symptoms in the past. The
ALJ may discredit a plaintiff if the plaintiff has made obvious, exaggerated, or
inconsistent statements in her testimony or on the record. See Van Vickle v. Astrue, 539
F.3d 825, 828 (8th Cir. 2008); O’Donnell v. Barnhart, 318 F.3d 811, 818 (8th Cir. 2003).
- 13 - 

At plaintiff’s initial meeting with Dr. Spalding she stated that she had been previously
diagnosed with bipolar disorder six months earlier. On the contrary, Nurse Anderson
specifically noted that plaintiff did not meet the diagnostic standards for bipolar disorder
and there is no other bipolar disorder diagnosis in the record.

(Tr. 201, 247.)

Additionally, when plaintiff visited Dr. Oliver in 2009, she told him that she had been
unemployed since 2003. However, according to plaintiff’s work history report and
testimony at her ALJ hearing, she had last been employed as a cashier as recently as
2008. (Tr. 35-36, 165, 214.)
An ALJ may also reject a claimant’s testimony if there are infrequent visits for
treatment. Casey v. Astrue, 503 F.3d 687, 693 (8th Cir. 2008). The record indicates that
plaintiff has not been hospitalized since 2000 she received no psychiatric treatment or
medication between 2000 and 2009. (Tr. 40-41, 201.)
The ALJ specifically noted that plaintiff’s lack of treatment and symptom
documentation prior to 2009 makes it difficult to find a more restrictive RFC prior to
September 30, 2008, the date she was last insured. (Tr. 23-24.) To receive disability
insurance benefits under Title II of the Act the claimant must establish that she was
insured under the Act when she was disabled. 42 U.S.C. § 423(c); 20 C.F.R § 404.130131; Hinchey v. Shalala, 28 F.3d 429, 431 (8th Cir. 1994); Orrick v. Sullivan, 966 F.2d
368, 370 (8th Cir. 1992). Plaintiff alleges an onset date of May 30, 2008, and was last
insured September 30, 2008 but failed to seek treatment until September 2009, a year
later. (Tr. 136-37, 201.)
Additionally,

after

beginning

treatment

in

appointments and treatment schedule were sporadic.

September

2009,

plaintiff’s

In 2010 plaintiff allowed six

months to pass in between appointments and in 2011 plaintiff failed to return to Dr.
Spalding for a follow-up visit for almost five months, despite being instructed to check in
monthly. (Tr. 242, 286, 291, 329.)
Further, “[a]cts which are inconsistent with a claimant’s assertion of disability
reflect negatively upon that claimant’s credibility.” Johnson v. Apfel, 240 F.3d 1145,
1148 (8th Cir. 2001). Plaintiff testified that she lacks the motivation to get out of bed one
- 14 - 

week every month and that she cries everyday for one to three hours a day but her
testimony and the record provide evidence contradicting her statements. (Tr. 42-43, 4445, 47.) Although she does not have custody of her children, plaintiff still travels to see
her twin sons in Quincy, Illinois once a week and on the weekends. (Tr. 289.) She also
discussed the possibility that they would move in with her fulltime if she acquired low
income housing. (Tr. 291.) Plaintiff also notes that her hobbies include socializing with
friends at her house, caring for her plants, and sewing, and that she engages in these
activities “everyday, all day.” (Tr. 154.) Plaintiff’s daily activities and testimony are
inconsistent with her assertion of disability.
The ALJ’s credibility determination is supported by substantial evidence.

B. Opinion of Dr. Spalding
Plaintiff argues that the ALJ erred by failing to properly accord the opinion of Dr.
Spalding great weight.
“[A] treating physician is normally entitled to great weight.” Prosch v. Apfel, 201
F.3d 1010, 1013 (8th Cir. 2000). However, an ALJ may “discount or even disregard the
opinion of a treating physician where other medical assessments are supported by better
or more thorough medical evidence or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.”

Id.

Further, “[i]t is

permissible for an ALJ to discount an opinion of a treating physician that is inconsistent
with the physician's clinical treatment notes.” Davidson v. Astrue, 578 F.3d 838, 843
(8th Cir. 2009); Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005).
The ALJ found that Dr. Spalding’s opinion regarding plaintiff’s ability to work
was inconsistent with his treatment notes and the record. (Tr. 25.) Dr. Spalding’s
opinion indicates that plaintiff suffers from marked limitation in her ability to interact
appropriately with the public, supervisors, and co-workers, and to respond appropriately
to work situation and changes in routine work settings. (Tr. 25, 325.) Dr. Spalding
asserted he came to these conclusions based on plaintiff’s suicidal ideation and violent
behavior. (Tr. 325.) Although Dr. Spalding noted that the plaintiff exhibited anger and
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extreme agitation, in every treatment note on record he found plaintiff negative for
suicidal or homicidal ideation, intent or plan. (Tr. 242, 246, 249, 286, 289, 292, 330,
332.) Thus Dr. Spalding’s treatment notes contradict the record.
Significantly, consistent with Dr. Spalding’s opinion, the ALJ found that
plaintiff’s RFC included limited contact with the public, supervisors, and co-workers and
found her capable of only unskilled work. To the extent that the ALJ deviated from Dr.
Spalding’s opinion, substantial evidence supports the ALJ’s decision to give Dr.
Spalding’s opinion less than great weight. Accordingly, plaintiff’s argument is without
merit.

C. Listing Impairments 12.04 and 12.06
In the third step of the sequential evaluation, the ALJ must determine if the
claimant has an impairment described in the listing of impairments. See 20 C.F.R. §§
404.1520a (4)(iii), 416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, App. 1. If the claimant
has an impairment, or a combination of impairments, that match or are substantially
equivalent to an impairment in the Listing of Impairments, the applicant is disabled per
se. 20 C.F.R. 1520d; Bowen v. City of New York, 476 U.S. 467, 471 (1986); Carlson v.
Astrue, 604 F.3d 585, 592 (8th Cir. 2010). Equivalence is to be determined “on medical
evidence only.” 20 C.F.R. § 1526b. To meet or equal a listing, the claimant must
“’present medical findings equal in severity to all the criteria for the one most similar
listed impairment.’” Carlson, 604 F.3d at 594 (quoting Sullivan v. Zebley, 493 U.S. 521,
531 (1990)).
When evaluating the severity of mental impairments, the ALJ must follow the
special technique provided by 20 C.F.R. § 404.1520a. The ALJ determines the degree of
functional limitation in four broad areas: activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decomposition.

20 C.F.R.

§404.1520a (3)(iii). The ALJ is required to incorporate the results of this technique into
their findings and conclusions. 20 C.F.R. § 404.1520a(4)(ii). However, an ALJ does not
err when she “fails to explain why an impairment does not equal one of the listed
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impairments as long as the overall conclusion is supported by the record.” Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
Plaintiff argues that the ALJ incorrectly determined that she did not meet or equal
Listing 12.04 or 12.06 which cover affective disorders and anxiety related disorders.
Under Listing 12.04 eligibility may be established by meeting the severity requirements
for paragraph A and paragraph B or by meeting the requirements of paragraph C. 20
C.F.R. pt. 404, subpt. P, App. 1 §12.04. In order to establish eligibility under 12.06,
plaintiff must satisfy paragraph A, and either paragraph B or C. 20 C.F.R. pt. 404, subpt.
P, App.1.
Plaintiff specifically challenges the ALJ’s determination regarding the B criteria,
which are identical for both Listing 12.04 and Listing 12.06. To satisfy the B set of
criteria for Listing 12.04 and Listing 12.06, a claimant must show that she suffers at least
two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id. Plaintiff argues that the ALJ erred by determining that plaintiff suffered only mild
restriction in activities of daily living, only moderate difficulties in maintaining social
functioning, only moderate difficulties regarding concentration, persistence, and pace,
and no lengthy episodes of decompensation. The regulations define the relevant terms as
follows:
Where we use “marked” as a standard for measuring the degree of limitation, it
means more than moderate but less than extreme. A marked limitation may arise
when several activities or functions are impaired, or even when only one is
impaired, as long as the degree of limitation is such as to interfere seriously with
your ability to function independently, appropriately, effectively, and on a
sustained basis.
***

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1. Activities of daily living include adaptive activities such as cleaning, shopping,
cooking, taking public transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and directories,
and using a post office.
***
2. Social functioning refers to your capacity to interact independently,
appropriately, effectively, and on a sustained basis with other individuals.
***
3. Concentration, persistence, or pace refers to the ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.
***
4. Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested
by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.
Id.
The ALJ’s decision fully addresses the reasons why plaintiff did not meet or equal
the paragraph B criteria required. (Tr. 16-17).
In regards to the determination that the plaintiff is mildly restricted in activities of
daily living, the ALJ relied on reports that she takes care of plants, hangs out with friends
at her house, crochets and sews, plays tetris, does laundry, drives, and sees two of her
children three times per week. (Tr. 16, 152, 154, 160, 173, 177, 288.) Additionally, the
ALJ determined that although plaintiff claims to have poor hygiene with intermittent
bathing, none of the medical records contain support for that assertion or note hygiene
related problems on examination. (Tr. 16.)
In regards to the determination that claimant has moderate difficulties in social
functioning, the ALJ cited records indicating that plaintiff lost interest and no longer
wanted to attend work as she lacked motivation. (Tr. 16, 241.) Plaintiff argues that she
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has symptoms of anxiety and panic when around people and that she was diagnosed by
Dr. Spalding with posttraumatic stress disorder and panic disorder. Additionally plaintiff
states that Dr. Spalding opined that she is markedly limited in her social interactive work
capacity based on her suicidal thoughts and violent behavior but none of these notes
appear in any of Dr. Spalding’s treatment record. (Tr. 16, 242, 246, 249, 286, 280, 290,
330, 332.) On the contrary, reports show that plaintiff hangs out with friends, lives with a
roommate, and sees her twin boys in Quincy, Illinois weekly. (Tr. 16, 152, 288.)
Regarding concentration, persistence, or pace the ALJ found that plaintiff has
moderate difficulty. Plaintiff argues that she has marked limitations based on her lack of
motivation for simple tasks, personal hygiene, and being dismissed from employment
based on a failure to her job as directed. However, the record indicates that plaintiff’s
psychiatrist has consistently noted that plaintiff had fair judgment and insight on mental
status examination and logical and goal-directed flow of thought. (Tr. 17, 242, 246, 249,
286, 289, 292, 330, 332.) The ALJ relied on plaintiff’s doctor’s finding that she could
handle her own money, was only mildly limited in her ability to understand simple
instructions and moderately limited in her ability to carry them out, that she is moderately
limited in her ability to make judgments on simple and complex work-related decisions
and to understand, remember and carry out complex instructions. (Tr. 17, 324, 326.)
Finally, the ALJ noted that plaintiff had experienced no episodes of decomposition
of extended duration and cited that there were neither allegations nor evidence that any
such episodes had occurred during the adjudicative period. (Tr. 17.) She noted that the
plaintiff failed to make any allegations or show any evidence of episodes of
decompensation and instead appeared relatively stable on medication. (Id.) Therefore,
the ALJ went through a complete and well reasoned analysis when concluding that
plaintiff’s impairments did not cause at least two marked limitations.
The ALJ correctly determined that plaintiff’s mental impairments do not meet a
listing impairment under §§ 12.04 and 12.06. Thus, plaintiff’s argument is without merit.

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VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE

Signed on July 29, 2013.

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