Fugate v. Colvin
MEMORANDUM OPINION: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Shirley P. Mensah on 3/19/15. (JWD)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DESHIA R. FUGATE,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 2:13-CV-00094-SPM
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, denying
the application of Plaintiff Deshia R. Fugate (“Plaintiff”) for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
(the “Act”). The parties consented to the jurisdiction of the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 6). Because I find the decision denying benefits was
supported by substantial evidence, I will affirm the Commissioner’s denial of Plaintiff’s
On December 13, 2007, Plaintiff applied for DIB and SSI, alleging that she had been
unable to work since December 13, 2004 due to epileptic seizures, back problems, restless leg
syndrome, carpal tunnel syndrome, depression, migraines, and glaucoma. (Tr. 42-43, 274-80,
281-88). Her application was initially denied. (Tr. 114-18). On February 13, 2008, Plaintiff filed
a Request for Hearing by an ALJ (Tr. 123). After a hearing, the ALJ issued an unfavorable
decision on May 19, 2010. (Tr. 92-105). Plaintiff filed a Request for Review of Hearing Decision
with the Social Security Administration’s Appeals Council on June 17, 2010 and the Appeals
Council remanded the case to another ALJ on May 26, 2011. (Tr. 109-12) On May 17, 2012,
Plaintiff amended her alleged onset date to March 13, 2007. (Tr. 335). After a hearing, the
second ALJ issued an unfavorable decision on June 25, 2012. (Tr. 9, 12-27). Plaintiff again filed
a Request for Review of Hearing Decision with Appeals Council on July 11, 2012, with
additional evidence. (Tr. 7-8). After considering the additional evidence, the Appeals Council
found that it did not provide a basis for changing the ALJ’s decision and declined to review the
case on August 22, 2013. (Tr. 1-2). Plaintiff has exhausted all administrative remedies, and the
decision of the second ALJ stands as the final decision of the Commissioner of the Social
At the hearing before the Administrative Law Judge (ALJ) on June 11, 2012, Plaintiff
testified as follows. Plaintiff was born in 1978 and has had two years of community college
education. (Tr. 41-42). She is a single parent with four children and receives disability payments
for two of them. (Tr. 42, 49, 54, 57). Plaintiff last worked in November 2011, preparing food in a
restaurant four hours a day for about a month. (Tr. 58). At work, she got along with people okay.
(Tr. 60). She did not think she would be able to perform the job eight hours a day because her
legs would not be able to take it. (Tr. 65). Between 2002 and 2009, Plaintiff also held jobs as a
counter worker filling drinks at a fast food restaurant, as a private care worker taking care of an
This is not intended to be a complete summary of the entire administrative record, but rather a
brief summary of those facts most relevant to Plaintiff’s appeal.
elderly uncle, as a cashier, as a CNA/dishwasher/cook at a nursing home, and as an assembler at
a factory. (Tr. 471-76).
Plaintiff testified that she has trouble doing ordinary day-to-day activities such as
cooking, laundry, and taking out the trash because of her carpal tunnel syndrome. (Tr. 43-44).
She can lift up to 20 or 25 pounds. (Tr. 45). Plaintiff drives, but she has trouble driving
(especially at night) because of her glaucoma. (Tr. 46, 57). Her vision is blurry and varies from
day to day. (Tr. 46, 49). She has migraines two to three times a week. (Tr. 48). She has
depression that affects her ability to do things with her kids. (Tr. 49). Her restless leg syndrome
keeps her up at night. (Tr. 50). Plaintiff’s mother helps her with transporting her kids, doing
grocery shopping, running errands, and paying bills. (Tr. 51-52, 56-57).
Plaintiff has an extensive record of medical treatment for various mental and physical
problems, including major depressive disorder, anxiety, bipolar disorder, migraine headaches,
restless leg syndrome, pain and numbness in her extremities, carpal tunnel syndrome, back pain,
seizures, sleeping problems, vision problems, hypertension, an ankle fracture, respiratory
illnesses, and dental issues. Records of particular importance to this appeal include records from
January 2005 through July 2007 showing that she received treatment for depression and anxiety
from Dr. Favazza, Dr. Reddy, and others at University Hospital (Tr. 548-76); records from
November 2006 through May 2008 showing that she received services at Burrell Behavioral
Health for her anxiety, depression, family issues, and financial issues (Tr. 603-23, 654-61);
records from October 2008 through December 2009 showing that Plaintiff received treatment for
anxiety and panic attacks from Kristin Parkinson, M.D., and others at Burrell Behavioral Health
(Tr. 879-98); records from February 2009 through October 2009 showing that Plaintiff received
treatment for anxiety, depression, panic disorder, fluid retention, dental problems, and pain from
Dr. Forest Conley, D.O., (Tr. 695-707); records from May 2007 through February 2012 showing
that Plaintiff received treatment for numbness, seizures, carpal tunnel syndrome, migraine
headaches, anxiety, stress, panic attacks, and sleep issues from neurologist Iqbal Khan, M.D. (Tr.
709-22, 748, 919-20, 999, 1126-30); records from June 2010 through August 2012 showing that
Plaintiff received treatment for depression, anxiety, and stress from psychiatrist Ahmed
Taranissi, M.D. (Tr. 983-84, 1162-63, 1188-91); 2 and records from September 2010 through
April 2012 showing that Plaintiff received treatment for seizure disorder, low back pain, glucose
intolerance, dental problems, osteomyelitis, acute bronchitis, chronic laryngitis, restless leg
syndrome, insomnia, acute sinusitis, depression, and anxiety from her primary care physician,
Denise Freidel, D.O. (Tr. 1132-61).
The record before the ALJ contained two opinions from Plaintiff’s treating sources: (1) a
December 30, 2009 Mental Source Statement from Dr. Parkinson indicating that Plaintiff had
some moderate cognitive and social limitations (Tr. 726-27), and (2) a May 2012 letter from Dr.
Freidel stating that Plaintiff “fights migraines 1-3 times per week and has to be in bed 2 hours to
help them subside,” that “her severe anxiety limits her interaction with people,” and that she “can
not hold a job due to her medical issues.” (Tr. 1164).
The record before the ALJ also contained three opinions from nonexamining state agency
consultants: (1) a February 2008 mental RFC assessment from Glenn D. Frisch, M.D., reflecting
some moderate cognitive and social limitations (Tr. 624-37); an October 2010 mental RFC
assessment and psychiatric review technique form from Mark Altomari, Ph.D., reflecting some
moderate cognitive and social mental limitations (Tr. 1093-1114); and an October 2010 physical
RFC assessment from Janie Vale, M.D., indicating that Plaintiff could lift 20 pounds
Some of Dr. Taranissi’s records were dated after the ALJ’s decision and were submitted to the
Appeals Council. (Tr. 1188-90).
occasionally and 10 pounds frequently, could stand and/or walk for about six hours in an eighthour workday, could sit for a total of six hours in an eight-hour workday, had unlimited pushing
and pulling ability, had some postural and environmental limitations, and had no manipulative or
visual limitations (Tr. 1108-1114).
After the ALJ’s decision, two additional opinions were submitted to the Appeals Council:
(1) a June 2012 letter from treating physician Dr. Freidel stating that Plaintiff “would miss more
than 14 days of work per year due to her physical and mental disabilities” (Tr. 1167), and (2) a
July 2012 mental capacity assessment from treating psychiatrist Dr. Taranissi, who found that
Plaintiff had numerous “marked” and “extreme” limitations in several areas of cognitive and
social functioning and that those limitations had been present since March 31, 2007. (Tr. 118687).
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.
2010). The impairment must be “of such severity that [the claimant] is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. §§
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant has a severe impairment, which is
“any impairment or combination of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii),
416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the
claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii);
McCoy, 648 F.3d at 611. If the claimant has such impairment, the Commissioner will find the
claimant disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20
C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20
C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the Commissioner determines whether the
claimant can return to his past relevant work, by comparing the claimant’s RFC with the physical
and mental demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1520(f), 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform
his past relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next
step. Id. At Step Five, the Commissioner considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant can make an adjustment to other work in the
national economy; if the claimant cannot make an adjustment to other work, the claimant will be
found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s age, education, and work experience, there are a significant number of other
jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d 1062,
1064 (8th Cir. 2012).
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff met the
insured status requirements of the Act through December 31, 2011, and had not engaged in
substantial gainful activity since March 31, 2007, the alleged onset date of disability. The ALJ
found that Plaintiff had the severe impairments of bipolar disorder, seizure disorder, migraines,
degenerative disc disorder, and obesity; and that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 15-18). The ALJ found that
Plaintiff had the RFC to perform a range of light work as defined in 20 C.F.R. § 404.1567(b)
and § 416.967(b). Specifically, he found that Plaintiff could lift or carry 20 pounds occasionally
and ten pounds frequently; could stand, sit, and/or walk for about six hours during a normal
eight-hour workday; could occasionally climb ramps and stairs, could occasionally balance,
kneel, crouch, crawl; could frequently reach, handle, and finger; could never climb ladders, ropes
or scaffolds; should avoid exposure to hazards, such as dangerous machinery or unprotected
heights; had limited fine visual acuity, such that she was unable to read fine prints as part of her
job duties; could not operate a motor vehicle or work in intense sunlight or outdoors as part of
her job duties; and could understand, remember, and carry out non-detailed, two- or three-step
instructions and perform repetitive tasks in a routine work environment involving infrequent
changes and wherein interaction with supervisors, coworkers, and the public would be superficial
in nature. (Tr. 18). Relying on the testimony of a vocational expert, the ALJ found that while
Plaintiff was unable to perform past relevant work, there were jobs such as cleaner/polisher,
folder, and housekeeping cleaner that exist in significant numbers in the national economy that
she can perform. (Tr. 25-27). The ALJ therefore concluded that Plaintiff had not been under a
disability from March 31, 2007, through the date of the decision. (Tr. 27).
Plaintiff’s primary argument is that the ALJ’s decision should be reversed because the
ALJ failed to properly evaluate and rely on the treating source opinions in the record and
improperly formed his own opinion in the medical evidence. Specifically, Plaintiff argues that
the ALJ gave insufficient weight to the May 2012 letter from Dr. Freidel. (Tr. 1164). She also
suggests that the opinions submitted to the Appeals Council—the June 2012 letter from Dr.
Freidel and the July 2012 mental capacity assessment from her treating psychiatrist, Dr.
Taranissi—provide grounds for remanding the case.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275
F.3d 722, 724 (8th Cir. 2002); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).
“Substantial evidence ‘is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir.
2012) (quoting Moore, 572 F.3d at 522). In determining whether substantial evidence supports
the Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the
evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the
credibility of testimony, as long as those determinations are supported by good reasons and
substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)). “‘If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
B. Dr. Freidel’s May 2012 Opinion
Dr. Freidel was Plaintiff’s primary care physician from September 2010 through April
2012. (Tr. 1132-61). On May 22, 2012, Dr. Freidel completed a letter stating:
[Plaintiff] has been my patient since 9/13/10. [Plaintiff] has diagnosis [sic] that
include: depression, anxiety, migraine headaches, seizure disorder, hypertension,
glucose intolerance, low back pain, bilateral knee pain, restless leg syndrome,
insomnia, sleep apnea and she fought osteomyelitis in her right jaw over the past
year. She fights migraines 1-3 times per week and has to be in bed 2 hours to help
them subside. Her severe anxiety limits her interaction with people. It is my
opinion that [Plaintiff] can not hold a job due to her medical issues.
(Tr. 1164). The ALJ discussed this opinion but gave it “considerably less than controlling
weight.” (Tr. 24).
“A treating physician’s opinion is given controlling weight if it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [a claimant’s] case record.’” Tilley v. Astrue, 580 F.3d 675, 679
(8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)); Shontos v. Barnhart, 328 F.3d 418, 426
(8th Cir. 2003); Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000); 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Nonetheless, an ALJ may give lesser weight to a treating
physician’s opinion if this standard is not satisfied. Where it is not, this “means only that the
opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.” Social
Security Ruling 96-2p, 1996 WL 374118, at *4 (July 2, 1996). “Treating source medical
opinions are still entitled to deference and must be weighed using all of the factors provided in
20 C.F.R. 404.1527 and 416.927.” Id. These factors include the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, the evidence provided by the source in support of the opinion, the consistency of the
opinion with the record as a whole, the level of specialization of the source, and other relevant
factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). “When an ALJ discounts a treating
physician’s opinion, he should give good reasons for doing so.” Davidson v. Astrue, 501 F.3d
987, 990 (8th Cir. 2007); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will always
give good reasons in our notice of determination or decision for the weight we give your treating
After review of the ALJ’s decision and the record as a whole, I find that the ALJ’s
decision to discount Dr. Freidel’s opinion was supported by good reasons and substantial
evidence. First, Dr. Freidel’s opinion that Plaintiff “cannot hold a job due to her medical issues”
concerns a question reserved to the Commissioner and is not a medical opinion that is entitled to
deference. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (“A medical source opinion
that an applicant is ‘disabled’ or ‘unable to work’ . . . involves an issue reserved for the
Commissioner and therefore is not the type of ‘medical opinion’ to which the Commissioner
gives controlling weight.”); see also 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
Second, the ALJ properly found that Dr. Freidel’s medical opinions were “not supported
by her treatment notes.” (Tr. 24). More specifically, the ALJ explained that although the specific
limitations articulated in Dr. Freidel’s opinion relate to Plaintiff’s anxiety and migraine
headaches, “Dr. Freidel did not regularly treat [Plaintiff] for a mental impairment or migraine
headaches” and Plaintiff did not present with medical signs that supported Dr. Freidel’s opinions.
(Tr. 24). The ALJ’s assessment is supported by the record. Between September 2010 and April
2012, Dr. Freidel saw Plaintiff approximately fifteen times and treated her for a variety of issues,
including tooth pain, sore throat, laryngitis, cough, sinus pressure, restless leg syndrome, lower
back pain, and glucose intolerance. (Tr. 1132-61). The only mention of headache in Dr. Freidel’s
treatment notes is a February 2011 note stating “headache bad,” and there is no indication that
Dr. Freidel made any diagnoses or provided any treatment for the headaches. (Tr. 1150). Her
notes provide no support for her opinion that Plaintiff “fights migraines 1-3 times per week and
has to be in bed 2 hours to help them subside.” (Tr. 1164).
Dr. Freidel’s notes do indicate that Plaintiff sometimes complained of mental symptoms,
but the complaints were sporadic and appeared to be primarily related to situational stressors. In
2010, Dr. Freidel’s notes contain no mentions of mental issues at all. In 2011, mental symptoms
are mentioned only a few times: Dr. Freidel noted in February and June that Plaintiff was under
stress (Tr. 1146, 1150), in August 2011 that Plaintiff was on an antidepressant that helped her
mood a lot (Tr. 1144); and in October 2011 that Plaintiff was under “lots of stress” and had
“depression” (Tr. 1142-43). The first detailed description of mental symptoms was in January
2012, when Plaintiff reported that she had stopped taking her antidepressant, was more irritable,
was not sleeping, had been “kicked out” of her mental health treatment services, and had lost her
job. (Tr. 1138). Dr. Freidel diagnosed depression and anxiety and recommended restarting
Pristiq. (Tr. 1139). At Plaintiff’s next visits in February and March 2012, Plaintiff did not report
mental symptoms. (Tr. 1133-37). In April 2012, Plaintiff reported being under “a lot of stress”
due to her children, her mother, and her finances; being unable to focus; and having trouble
sleeping. (Tr. 1131). On examination, she was tearful, depressed, and anxious, but Dr. Freidel
noted that she was “doing better” after they spoke. Dr. Freidel again diagnosed depression and
anxiety. (Tr. 1132).
Although the above notes suggest that Plaintiff experienced some occasional stress,
depression, and anxiety, they do not support Dr. Freidel’s opinion that Plaintiff “has severe
anxiety [that] limits her interaction with people” that would prevent her from working at any job.
The fact that Dr. Freidel’s opinions contain limitations not reflected in her treatment notes
supports the ALJ’s decision to discount those opinions. See Anderson v. Astrue, 696 F.3d 790,
794 (8th Cir. 2012) (holding the ALJ did not err in giving minimal weight to the report of a
treating physician where the opinion was conclusory and contained significant limitations not
reflected in his treatment notes); Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (affirming
the ALJ’s decision to discount the opinion of a treating physician where it contained limitations
that “stand alone” and “were never mentioned in [the physician’s] numerous records of treatment
. . . nor [were] they supported by any objective testing or reasoning which would indicate why
the claimant’s functioning need be so restricted”).
Third, the ALJ properly considered that Dr. Freidel’s notes of mental symptoms appear to
have been based primarily on Plaintiff’s subjective complaints rather than on objective signs or
medical findings. Indeed, as the ALJ noted, the only indication in Dr. Freidel’s notes that Dr.
Freidel ever observed any clinical signs of mental symptoms were in her April 2012 notes
indicating that Plaintiff was tearful, anxious, and depressed. (Tr. 24, 1132). See Kirby v. Astrue,
500 F.3d 705, 709 (8th Cir. 2007) (holding that an ALJ was entitled to give less weight to a
treating physician’s opinion that “was based largely on [the claimant’s] subjective complaints
rather than on objective medical evidence”).
Fourth, it appears from the record that Plaintiff’s mental symptoms occurred primarily
when Plaintiff was experiencing situational stressors and/or was not taking her prescribed
antidepressants. Such symptoms are generally not considered disabling. See Brown v. Astrue,
611 F.3d 941, 955 (8th Cir. 2010) (“‘If an impairment can be controlled by treatment or
medication, it cannot be considered disabling.’”) (quoting Brace v. Astrue, 578 F.3d 882, 885
(8th Cir. 2009)); Gates v. Astrue, 627 F.3d 1080, 1082-83 (8th Cir. 2010) (affirming the ALJ’s
finding that the claimant’s depression was not severe where the record suggested his depression
was situational, was related to marital issues, and improved with a regimen of medication and
Fifth, the ALJ properly determined that Dr. Freidel’s opinions were inconsistent with
other evidence in the record, including opinion evidence. The ALJ gave “significant weight” to
the opinion of Plaintiff’s treating psychiatrist, Dr. Parkinson, who found Plaintiff had only
“moderate” limitations in several areas: the ability to remember locations and work-like
procedures; the ability to understand, remember, and carry out detailed instructions; the ability to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; the ability to sustain an ordinary routine without special supervision; the
ability to interact appropriately with the general public; the ability to accept instructions and
respond appropriately to criticism from supervisors; and the ability to respond appropriately to
changes in the work setting. (Tr. 23-24, 726-27). Dr. Parkinson further found that Plaintiff had
no significant limitation in the ability to understand, remember, and carry out simple instructions.
(Tr. 726-27). The ALJ found this opinion consistent with Dr. Parkinson’s treatment notes, which
showed that Plaintiff had a depressed mood, a flat and blunted affect, and partial insight and
judgment, but not more severe symptoms. (Tr. 24, 881-86, 894-98). In assessing Plaintiff’s RFC,
the ALJ accommodated the limitations in Dr. Parkinson’s opinion by limiting Plaintiff to jobs
involving “non-detailed, two- or three-step instructions” and “repetitive tasks in a routine work
setting involving infrequent changes and wherein interaction with supervisors, co-workers, and
the public would be superficial in nature.” (Tr. 18).
Dr. Freidel’s opinion was also inconsistent with the opinions of the two non-examining
State agency consultants, Dr. Frisch and Dr. Altomari, each of which the ALJ gave “significant
weight.” (Tr. 23). Both Dr. Frisch and Dr. Altomari completed mental RFC assessments
indicating that Plaintiff had, at most, moderate limitations in mental abilities needed to perform
work. (Tr. 624-37, 1093-1107). As the ALJ noted, these consultants based their opinions on
comprehensive reviews of the record and accompanied their opinions with detailed narratives
explaining the evidence supporting their opinions. (Tr. 23).
Dr. Freidel’s opinion that Plaintiff’s “severe anxiety limits her interaction with people” is
also inconsistent with Plaintiff’s own statement that when she worked in November 2011, she
got along okay with people and had no difficulty with her manager. (Tr. 60). It is also somewhat
inconsistent with records discussed by the ALJ that show that although Plaintiff often had
abnormalities in her mood and affect, other aspects of Plaintiff’s mental status examinations
were normal: she was typically observed to be cooperative, not in acute distress, alert and
oriented, with normal thought content, with normal speech patterns, making good eye contact,
having fair judgment, having intact memory and attention, and having no suicidal or homicidal
ideations. (See, e.g., Tr. 19-20, 573, 576, 610, 657, 661, 663, 983, 999, 1033, 1162).
Furthermore, Dr. Freidel’s opinion regarding Plaintiff’s headaches is inconsistent with
the treatment notes of Dr. Iqbal Khan, who treated Plaintiff for her headaches. Dr. Khan often
noted that Plaintiff’s headaches were controlled by Topomax. (Tr. 919-20, 999, 1129-30,
Although Plaintiff did report increased headaches in late 2011 and early 2012 that she thought
were related to situational stress, she reported that the Topomax still helped some and she was
“still able to do her job without any significant problems.” (Tr. 1126-28). These notes are
inconsistent with Dr. Freidel’s suggestion that Plaintiff had migraines three times a week that
required her to be in bed for two hours each time.
Finally, if Dr. Freidel was suggesting that Plaintiff’s physical conditions other than her
headaches rendered her unable to work, her opinion is both unsupported by her treatment records
and inconsistent with the other evidence in the record. Dr. Freidel’s treatment notes do not
indicate that any of Plaintiff’s conditions imposed significant, long-term limitations on her. In
addition, the only source in the record to specifically address the limitations imposed by
Plaintiff’s physical condition was Dr. Vale, who found that she could lift 20 pounds occasionally
and 10 pounds frequently, could stand and/or walk for about six hours in an eight-hour workday,
could sit for a total of six hours in an eight-hour workday, had unlimited pushing and pulling
ability, had some postural and environmental limitations, and had no manipulative or visual
limitations (Tr. 1108-1114). The ALJ gave significant weight to these findings and included
most of them in the RFC.
For all of the above reasons, the Court finds that the ALJ’s decision to give less than
controlling weight to Dr. Freidel’s opinions was consistent with applicable regulations and was
supported by good reasons and substantial evidence. The Court further finds that the ALJ’s
decision regarding Plaintiff’s RFC was supported by substantial evidence in the record, including
the opinion of treating physician Dr. Parkinson; the opinions of the three state agency
consultants; the treatment notes of neurologist Dr. Khan, Dr. Freidel, and Plaintiff’s other
treatment providers; and Plaintiff’s own testimony regarding her abilities.
C. Opinions Submitted to the Appeals Council
When the Appeals Council denies review of an ALJ’s decision after reviewing new
evidence, the Court does not evaluate the Appeals Council’s decision to deny review. Rather, the
Court determines whether the record as a whole, including the new evidence, supports the ALJ’s
determination. McDade v. Astrue, 720 F.3d 994, 1000 (8th Cir. 2013); Perks v. Astrue, 687 F.3d
1086, 1093 (8th Cir. 2012); Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000). The Eighth
Circuit has noted that this requires that the Court “must speculate to some extent on how the
administrative law judge would have weighed the newly submitted reports if they had been
available for the original hearing,” which is “a peculiar task for a reviewing court.” Riley v.
Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
Plaintiff suggests that two opinions prepared after the ALJ’s decision and submitted to
the Appeals Council require remand here: (1) Dr. Freidel’s June 27, 2012 letter, and (2) Dr.
Taranissi’s July 7, 2012 Mental Capacity Assessment. The Court has considered these opinions
and concludes that even when they are considered, the ALJ’s decision is supported by substantial
evidence in the record as a whole.
1. Dr. Freidel’s June 27, 2012 Letter
In her June 2012 letter, Dr. Freidel opined that Plaintiff “would miss more than 14 days
of work per year due to her physical and mental disabilities.” (Tr. 1167). The letter contains no
further explanation. The Court finds that the ALJ would have likely discounted this opinion for
the same reasons that he discounted the opinions in Dr. Freidel’s first letter. First, the opinion is
not supported by Dr. Freidel’s treatment notes, which contain no indication that Plaintiff suffered
significant and ongoing symptoms from her anxiety, migraine headaches, or other conditions that
would cause her to miss work frequently. Second, the opinion is inconsistent with the other
substantial evidence in the record to which the ALJ gave significant weight. Dr. Parkinson and
Dr. Altomari found that Plaintiff was not significantly limited in the ability to “complete a
normal workday and workweek without interruption from psychologically based symptoms,”
and Dr. Frisch found only moderate limitations in that area. (Tr. 625, 727, 1094). Similarly, Dr.
Altomari and Dr. Frisch found that Plaintiff was not significantly limited in “the ability to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances,” and Dr. Parkinson found only moderate limitations in that area. (Tr. 624,
726, 1093). Particularly in light of the fact that Dr. Freidel’s letter contains no explanation of the
basis for her opinion that Plaintiff would miss work frequently, the Court finds no reason to
believe that the ALJ would have credited it over the other opinions in the record that he found
were well supported.
Dr. Taranissi’s July 7, 2012 Mental Capacity Assessment
On July 7, 2012 (after the ALJ’s decision), one of Plaintiff’s treating psychiatrists, Dr.
Taranissi, completed a Mental Capacity Assessment. (Tr. 1186-87). Dr. Taranissi found Plaintiff
had “extreme” limitations in the ability to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes. (Tr. 1187). He also found that she had “marked”
limitations in the ability to carry out detailed instructions, the ability to sustain an ordinary
routine without special supervision, the ability to complete a normal workweek without
interruptions from psychologically based symptoms, the ability to perform at a consistent pace
with a one-hour lunch break and two 15-minute rest periods, the ability to interact appropriately
with the general public, the ability to accept instructions and respond appropriately to criticism
from supervisors, and the ability to respond appropriately to changes in the work setting. He
found moderate limitations in most of the other areas considered. (Tr. 1186-87). He also opined
that Plaintiff would likely have four or more work absences in an average month. (Tr. 1186). The
assessment states that it describes limitations existing “as of March 31, 2007.” (Tr. 1186).
The Court finds that this opinion would not have changed the ALJ’s decision regarding
Plaintiff’s RFC. First, the ALJ would likely have discounted Dr. Taranissi’s opinion for
generally the same reasons he discounted Dr. Freidel’s opinion. Like Dr. Freidel’s opinion, Dr.
Taranissi’s opinion is inconsistent with other substantial evidence in the record, including
Plaintiff’s own testimony that she got along okay with her coworkers and manager when she was
working in November 2011; the opinion of treating psychiatrist Dr. Parkinson that Plaintiff had
(at most) moderate mental limitations; the opinions of state agency consultants Dr. Frisch and
Dr. Altomari that Plaintiff had (at most) moderate mental limitations; and the treatment notes in
the record indicating that Plaintiff had largely normal mental status examinations and did not
consistently complain of mental symptoms. Like Dr. Freidel’s opinions, Dr. Taranissi’s opinions
appear to be based in large part on Plaintiff’s subjective complaints rather than on objective
clinical findings. (Tr. 983, 1162, 1188-91). In addition, as with Plaintiff’s complaints to Dr.
Freidel, Plaintiff’s complaints to Dr. Taranissi were nearly always associated with situational
stressors, such as financial and family problems. (Tr. 983, 1162, 1188).
Moreover, as with Dr. Freidel’s opinions, Dr. Taranissi’s opinions are not supported by
his own treatment notes. Plaintiff reported to Dr. Taranissi that she felt down, anxious,
overwhelmed, or lacking in focus, and he observed her to have an anxious and depressed mood.
However, his mental status examinations of Plaintiff were otherwise generally normal, showing
that Plaintiff had good eye contact, fluent speech, fair insight and judgment, mostly logical and
goal-directed thoughts, and an average intellect. (Tr. 983, 1162, 1188-90). These notes are more
consistent with the moderate cognitive and social limitations in the RFC than they are with the
extreme and marked limitations in Dr. Taranissi’s opinion. It is also significant that although Dr.
Taranissi’s opinion purports to cover the period from March 2007 through the date of the ALJ’s
June 2012 decision, Dr. Taranissi saw Plaintiff on only two occasions during that period: once in
June 2010 and once in July 2011. (Tr. 983-84, 1162). He then saw her on two occasions in 2012,
after the ALJ’s decision. (Tr. 1188-91). The sporadic nature of his treatment undermines the
weight the ALJ would likely have given to his opinion. See Casey v. Astrue, 503 F.3d 687, 693
(8th Cir. 2007).
For all of the above reasons, the Court finds that even when the new opinions submitted
to the Appeals Council are considered, the ALJ’s decision regarding Plaintiff’s RFC is supported
by substantial evidence in the record as a whole, including the opinion of treating physician Dr.
Parkinson, the opinions of the three state agency consultants, the treatment notes of Dr. Khan and
Plaintiff’s other treatment providers, and Plaintiff’s own statements about her abilities. Thus,
remand is not required. See Perks, 687 F.3d at 1093-94 (holding that a treating physician opinion
submitted after the ALJ’s decision did not require remand where the opinion was not supported
by clinical or diagnostic data and where consideration of the opinion along with the evidence
before the ALJ did “not lead to the conclusion that the ALJ would have reached a different result
or that the ALJ’s decision is unsupported by substantial evidence in the record as a whole”).
For all of the foregoing reasons, the Court finds the Commissioner’s decision is
supported by substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of March, 2015.
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