Holtel v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.. Signed by District Judge Carol E. Jackson on 2/2/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 2:13-CV-112 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On March 23, 2011, plaintiff Evelyn Holtel filed applications for disability
insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security
income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of April 25,
2005, which was subsequently amended to March 23, 2011.1 (Tr. 154-160, 161-68,
33-34). After plaintiff’s applications were denied on initial consideration (Tr. 95-101,
102-08), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 10910).
Plaintiff and counsel appeared for a hearing on June 5, 2012. (Tr. 29-80). The
ALJ issued a decision denying plaintiff’s applications on July 17, 2012. (Tr. 8-28). The
Appeals Council denied plaintiff’s request for review on October 24, 2013. (Tr. 1-6).
Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
As a result of the amended date of onset, plaintiff no longer qualified for
benefits under Title II. See Tr. 33 (ALJ explained that in order for plaintiff to qualify
for Title II benefits, he would have to find that she became disabled on or before June
30, 2006, and her medical records started in 2008).
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 186-97), plaintiff listed her disabling conditions as
attention deficit disorder, depression, pain in both legs and knees, burning and tingling
in her right leg, trouble staying awake, and chest pains. She left her work as a poultry
processor on April 25, 2005, to deal with her son’s behavioral problems. Between
1997 and 2005, she worked for brief periods as a line worker in a manufacturing plant,
a processor in poultry and hog plants, and a babysitter.
medications included Alprazolam to treat anxiety and Ampheta S/Combo to treat
attention deficit disorder. (Tr. 182). Between 2009 and March 2011, she participated
in court-ordered family counseling. (Tr. 183).
Plaintiff completed a Function Report on March 28, 2011. (Tr. 186-97). Her
daily activities included watching television, making phone calls, reading the
newspaper, and attending medical and counseling sessions. She reported that her
three children were removed from her care by the Department of Family Services
because she was unable “to keep [her] house clean enough and a constant eye on
them.” (Tr. 187). She provided some care for a cat and a dog. She managed her
personal care without assistance or reminders, but she used an alarm to remind her
to take medication. She did her own laundry and took care of some housecleaning and
yard work, but took a lot of breaks. She was able to drive a car and go out alone. She
went shopping for groceries and other necessities once a week. She was able to pay
bills, handle a checkbook and savings account, and count change. She talked with her
children on the telephone every day. She prepared simple meals for herself. Her
hobbies included reading and watching television; she also liked to play video and
computer games. Although she liked to do needle work, she was not able to do it very
often due to swelling and numbness in her hand. Plaintiff had difficulty with lifting,
standing, squatting, walking, bending, reaching, sitting, kneeling, climbing stairs,
instructions, using her hands, and getting along with others. She could lift 5 to 10
pounds and walk for about 30 minutes before she needed to rest for 5 minutes. She
had lost jobs because she could not handle being criticized for her performance and
she did not respond well to stress. She felt increasing stress when she was out in
public, especially around law enforcement officers.
Plaintiff’s husband, Billy Holtel, completed a Third-Party Function Report. (Tr.
198-206). He stated that he went to plaintiff’s house on weekends to help her clean
and do laundry. He stated that plaintiff did not do “much if anything at all” on a daily
basis. She sometimes cooked dinner, but could not work at a fast pace. She was slow
getting up in the morning and was sleeping “more and more every day.” (Tr. 198,
201). Plaintiff was limited in her abilities to lift, climb stairs, walk, reach, complete
tasks, and concentrate. He described her as “blow[ing] up really bad” when under
stress, and stated that she became angry and upset when her routines changed. Mr.
Holtel completed another report in July 2011, stating that plaintiff was too slow to work
and that she was unable to care for the children without help. (Tr. 223-26). He said
her bipolar disorder and anxiety had them “in a bind” with his job and the children.
She experienced pain in her knees and arms.
She sometimes slept for 12 hours
because of the medication she took. He stated that she could walk one block, stand
for two hours, and sit for one and a half hours. She screamed and yelled at him when
under stress if her medications were “too low.” She often forgot to make phone calls,
pay bills or buy groceries.
B. Testimony at Hearing
Plaintiff was 33 years old at the time of the hearing. (Tr. 38). She graduated
from high school with a license as a certified nursing assistant. (Tr. 43). She lived
with her husband, who was employed and provided health insurance coverage for her.
Their three children—aged 13, 11, and 3—were removed from their care in early 2011.2
Plaintiff and her husband were trying to find more adequate housing so that they could
regain custody of the children.3 (Tr. 38-39, 68).
(Tr. 38-39). They drove every
weekend to visit with family or with the children.
Plaintiff testified that she was unable to work because her social anxiety had
increased. (Tr. 47). Under questioning from her attorney, she testified that in 2007
she was diagnosed with mild depression, which she described as fluctuating. About
once a week she had a crying spell and about once a month she stayed in bed for two
days at a time. (Tr. 66-67). Adderall helped her to stay awake and to focus, although
she still dozed off while watching the news. (Tr. 68-69). Plaintiff testified that she was
also easily distracted by loud noises or having people around her. (Tr. 69).
Plaintiff received testing services from Rebecca Still and weekly individual and
family counseling from Laura Still. (Tr. 48-49). At the time of the hearing, the family
was participating in court-ordered counseling, with a focus on plaintiff’s anger and
depression. (Tr. 48, 51, 70).
She testified that she went to jail for one or two weeks. (Tr. 38-39)
Plaintiff testified that this was the second time the children were removed. (Tr.
When asked about physical problems that kept her from working, plaintiff
testified that she had burning, numbness, and tingling in her right thigh if she stood
or sat for too long. (Tr. 54-55). Her physician had previously opined that the pain was
due to a pregnancy-related pinched nerve that would resolve itself after her child was
born. She took over-the-counter medicines for the pain. (Tr. 56). She was able to
sit for one to two hours before needing to stand and to sit for four hours in an eighthour day. She could walk for about an hour before needing to rest and for a total of
two to four hours in an eight-hour day. (Tr. 59). She could stand for 15 minutes at
a time and about two hours in an eight-hour day. (Tr. 58). She was more active when
she was with her three-year old. (Tr. 56-57). She had not required surgery or been
to a hospital or emergency room since 2005. (Tr. 55). She generally saw her primary
care physician only when she needed refills for her prescriptions. (Tr. 53).
The ALJ asked plaintiff about her past work experience. (Tr. 43-47). In 1997,
plaintiff worked as a poultry processor. In 2000, she worked for one month as a neck
The state paid her to babysit for six months in 2003 and 2004. In
June or July 2004, she started working again as a poultry processor. She was laid off
between August and October of that year and quit in April 2005 because she was
getting a lot of calls from her oldest son’s school due to his behavioral issues.
Plaintiff testified that on a typical day, she might take a shower and eat
breakfast. (Tr. 60-61). Her husband or father did much of the cooking, but she could
manage a box dinner. She and her husband ate out when there was money to do so.
She did laundry, but her husband carried the baskets up and down stairs
for her and did most of the mopping and vacuuming. She did grocery shopping either
alone or with her husband.
She liked to read books and magazines and watch
television. (Tr. 64).
Michael J. Wiseman, a vocational expert, testified that plaintiff’s past work as a
poultry processor was classified as light and unskilled, with a Specific Vocational
Preparation (SVP) level of 2.4 The ALJ asked Mr. Wiseman about the employment
opportunities for an individual of plaintiff’s age, education, and work experience, who
could perform medium work; could remember and carry out simple instructions, use
judgment, relate to supervisors and co-workers in usual work settings; and could deal
with changes in a routine work setting. Mr. Wiseman opined that such an individual
could return to plaintiff’s past relevant work. (Tr. 74). He was next asked to assume
that the individual was limited to light work and, in addition to the nonexertional
limitations previously described, should avoid concentrated exposure to hazards. Mr.
Wiseman opined that such an individual would be precluded from performing work as
a poultry processor, which required use of knives. (Tr. 75). However, the individual
would be able to work as a housekeeper, cafeteria attendant, or small products
assembler, which are all classified as light and unskilled, with an SVP of 2. Finally, the
ALJ asked Mr. Wiseman to assume that the same individual was moderately limited in
the ability to understand, remember and carry out simple instructions; and was
markedly limited in the ability to make judgments on simple work-related decisions,
The SVP level listed for each occupation in the Dictionary of Occupational Titles
(DOT) connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. Hulsey v. Astrue, 622 F.3d
917, 923 (8th Cir. 2010). At SVP level 2, an occupation requires more than a short
demonstration but not more than one month of vocational preparation; level 3 covers
occupations that require over 30 days and up to and including 3 months; level 4 covers
occupations that require over 3 months and up to and including 6 months. 20 C.F.R.
interact appropriately with supervisors and co-workers, and respond appropriately to
usual work situations and changes in routine. Mr. Wiseman responded that these
limitations would eliminate all competitive work. (Tr. 77). In response to questions
from plaintiff’s counsel, Mr. Wiseman opined that an individual who required two
unexcused absences a month and breaks beyond midmorning, lunch, and midafternoon
would be able to obtain employment but could not retain it for very long.
C. Medical Records
In January 2008, G. Michael Early, D.O., plaintiff’s primary care physician,
prescribed the antidepressant Celexa for plaintiff. (Tr. 254). In October 2009, plaintiff
was prescribed Adderall for treatment of attention deficit disorder. (Tr. 248). In
November 2010, plaintiff reported that she had injured her right arm in a fall. She
stopped taking Celexa in December 2010 because it made her sleepy and did not work.
She was prescribed Xanax in February 2011. Id.
In March 2011, the Adair County Children’s Division asked Rebecca S. Still, a
licensed psychologist, to complete a psychological evaluation of plaintiff after her
children were removed due to “severe physical abuse” of one child by plaintiff’s
husband. (Tr. 266-87).
Plaintiff was charged with child endangerment because she
failed to protect the children.
The agency expressed concern about poor
communication between family members, plaintiff’s lack of recognition of her own poor
actions and the consequences of conduct. (Tr. 269). Rebecca Still administered tests
to assess attention deficit hyperactivity disorder, cognitive functioning, depression,
self-esteem, anxiety, and parental stress as well the Minnesota Multiphasic Personality
Inventory (MMPI). Rebecca Still described plaintiff as “interested in the tasks” and
employing “an orderly approach.” (Tr. 270). There were no overt signs of anxiety but
there were possible signs of depression. Plaintiff exhibited a somewhat blunted affect.
She rarely became discouraged but needed occasional reassurance. She did not seem
distractible and her activity level was appropriate.
She did not have difficulty
understanding the instructions and was friendly and cooperative. Rebecca Still noted
that there was a possibility the profile was inaccurate due to plaintiff’s tendency to
exaggerate psychopathology.5 (Tr. 274).
Plaintiff’s cognitive functioning was in the low average range and no specific
learning disabilities were identified. (Tr. 272).
She showed clinically significant
problems in motor functioning, memory, sequencing, visual processing and attention.
She scored within the mild range on a depression inventory and the moderate range
on an anxiety questionnaire, and she was assessed as having low-self esteem, which
Ms. Still opined was likely to be valid. (Tr. 277). The diagnostic impression included
adjustment disorder with mixed anxiety and depressed mood, post-traumatic stress
disorder, bipolar disorder not otherwise specified, generalized anxiety disorder, and
avoidant personality disorder.
She was assigned a current Global Assessment of
Functioning (GAF) score of 55.6
For example, plaintiff self-reported as “high” in inattention/memory problems
and inattentive symptoms. However, she received a score of 10 on a test where a
score of more than 20 indicates a strong tendency toward ADD. (Tr. 270).
The GAF is determined on a scale of 1 to 100 and reflects the clinician’s
judgment of an individual’s overall level of functioning, taking into consideration
psychological, social, and occupational functioning. Impairment in functioning due to
physical or environmental limitations are not considered. American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 32-33 (4th ed. 2000). A GAF of 51-60 corresponds with “moderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) OR difficulty in
social, occupational or school functioning (e.g., few friends, conflicts with peers or coworkers).” Id. at 34.
Laura Still, LCSW, provided individual and family counseling to plaintiff and her
family between March 2011 and January 2012. In a report written on March 16, 2011,
Laura Still wrote that plaintiff displayed temper spells a child and was placed on
Tegretol because of her aggressive behaviors. (Tr. 285). She had no difficulties with
appetite or sleep and got up in the morning without difficulty. Her husband described
her as inattentive and disorganized. At the time of the report, plaintiff was taking
Adderall and Xanax, as prescribed by her primary care physician. Counseling notes
indicate that plaintiff routinely failed to complete the tasks required in order to have
her children returned to her care (e.g., Tr. 370, 361, 360, 359, 357, 355, 354, 353),
her oldest son continued to have aggressive outbursts while on visits, in foster care,
and at school (Tr. 367, 362, 350, 347-48, 398-402), and plaintiff and her husband
disagreed about having the children returned from foster care (Tr. 366, 351). In
addition, Ms. Still noted marital discord (Tr. 364, 351) and Mr. Holtel’s ongoing criminal
proceedings arising from his assault of their oldest son (Tr. 351, 393).
On May 3, 2011, Jeffery Harden, D.O., performed a psychiatric evaluation of
plaintiff on behalf of the Adair County Department of Social Services. (Tr. 320-23).
Plaintiff believed that she was intermittently disabled from working because she
completed tasks slowly.
When she was criticized for this slow performance, she
became very upset and tearful.
She also believed that she suffered from recurrent
depression, starting in elementary school. She was psychiatrically hospitalized for one
month in 6th grade after she threatened to harm others. Plaintiff reported that she
was able to do her own cooking, cleaning, driving and shopping, and could handle
money, medication, and personal hygiene. She liked reading and spending time on the
computer and did not engage in any group or social activities outside her home.
On examination, Dr. Harden noted that plaintiff was on time, with casual attire
and appropriate grooming. She showed logical thought processes with no speech
eccentricities. Her affect was well modulated. She reported that her mood and sleep
were satisfactory, as were her energy and concentration when she took her
medication. However, her appetite, motivation and overall enjoyment of life were
poor. Plaintiff was fully oriented and her general fund of information, concentration,
memory, and abstract thought were all adequate. She displayed appropriate social
judgment and insight into her own situation. Dr. Harden’s diagnostic impressions
included bipolar disorder I, most recent episode depressed, and obesity. He assigned
GAF scores of 55 for the past year and 50 at the time of the assessment.
On May 12, 2011, Stephen R. Bergman, D.O., conducted a disability evaluation
of plaintiff, based on her allegations of attention deficit disorder and chronic pain and
numbness in her legs and right shoulder. (Tr. 289-93). At the evaluation, plaintiff
reported that she had pain and swelling in her hands and wrists, with occasional
numbness at night. The pain was not constant, and typically registered between 2 and
4 on a 10-point scale, but sometimes was as high as 8 and woke her from sleep.
Plaintiff also experienced pain and numbness in her thighs, chronic pain in her knees,
and weakness in her right ankle. Plaintiff reported that she had been diagnosed with
mild depression in 2007, when her children were removed from her care for the first
time because the family house was deemed to be unsanitary. She experienced “ups
and downs” in her mood after her children were removed for a second time, but denied
debilitating depression. (Tr. 290). She had “plenty of energy throughout the day” with
Adderall. Id. She was easily fatigued in the evenings and slept fairly well at night.
Adderall also helped with her attention deficit disorder. Plaintiff described chest pains
that Dr. Bergman attributed to anxiety or rib dysfunction.
On physical examination, Dr. Bergman noted that plaintiff was 4 feet, 10.5
inches tall and weighed 260 pounds, yielding a body-mass index of 54.5. Plaintiff had
some decreased sensation and numbness in her thighs, but otherwise her sensation
and motor functions were intact. Her deep tendon reflexes were normal and equal
bilaterally, as was her strength as measured in both upper and lower extremities. Her
grip was normal. She was able to stand, walk on her heels and toes, and squat and
kneel, although with some knee pain. Tinel’s test for carpal tunnel syndrome was
positive in both wrists, with the left being slightly worse that the right, with mild
swelling and fluid retention.
Otherwise, she had good dexterity and fine finger
movement with her hands. All of her range of motion was intact and without deficit.
She had tenderness on palpation of the knees.
Dr. Bergman’s medical impressions included morbid obesity, chronic knee pain,
bilateral meralgia paraesthetica, bilateral carpal tunnel syndrome, more severe on the
left, tendonitis in the right shoulder, anxiety and depression, history of attention deficit
disorder, and history of exercise induced asthma. Dr. Bergman opined that plaintiff
“had an undercurrent of anxiety and attention deficit that has contributed to her not
working since 2005. Her depressive symptoms are also playing a significant role in
that scenario.” It was Dr. Bergman’s opinion that, physically, she was able to function
fairly normally and could perform normal work-related functions, with some decreased
functional capacity due to carpal tunnel syndrome and nerve sensitivity in her thighs.
James L. Tichenor, Ph.D., performed a consultative psychological examination
on May 17, 2011. (Tr. 299-301). Dr. Tichenor noted that plaintiff was generally alert
but somewhat withdrawn, with somewhat blunted affect. Her speech quantity was low
average with no articulation difficulties. She was oriented to person, place and time.
Her recent and remote memory were adequate and her immediate memory was
average. Her performance on several tasks suggested that she had less than average
basic arithmetic skills, a possible mild deficit in cognitive processing efficiency, a deficit
in abstraction ability, and less than average general intellectual functioning. There was
no indication that impulse control was a problem, and her thought processes were
logical and coherent. Her score on a self-report of depressive symptoms was within
the mild range. Dr. Tichenor concluded that plaintiff was under stress due to “current
legal and child difficulties” which presented a severe challenge to her ability to cope.
(Tr. 301). Her ability to understand and remember instructions, to concentrate and
sustain on-task performance, and to interact socially and adapt were lower than
average but did not completely preclude gainful employment. Her less-than-average
learning ability would be a factor in her ability to obtain and maintain employment. Dr.
Tichenor opined that plaintiff’s emotional difficulties were likely to be temporary if she
received appropriate support services. She might also require assistance in managing
money. He diagnosed plaintiff with adjustment disorder with anxiety and depressed
mood, moderate, and rule out borderline mental retardation. He assigned a GAF score
On June 3, 2011, Barbara Markway, Ph.D., completed a Psychiatric Review
Dr. Markway concluded that plaintiff had a medically
determinable diagnosis of moderate adjustment disorder with anxiety and depressed
(Tr. 306). Plaintiff had moderate difficulties in maintaining concentration,
persistence or pace and maintaining social functioning; she had mild restriction of daily
Dr. Markaway noted that the record contained no documented
medically determinable impairment from April 25, 2005 -- the alleged date of onset -to the date last insured.
Dr. Markway also completed a Mental Residual Functional Capacity Assessment.
She found that plaintiff was moderately limited in the ability to
understand, remember, and carry out detailed instructions; maintain attention and
concentration for extended periods; accept instructions and respond appropriately to
criticism from supervisors; respond appropriately to changes in the work setting; and
set realistic goals or make independent plans. Dr. Markway concluded that plaintiff
retained the ability to understand, remember and carry out simple instructions,
maintain adequate attendance, sustain ordinary routine without special supervision,
interact appropriately with peers and supervisors, and adapt to most usual changes
common to a competitive work setting.
On August 19, 2011, plaintiff requested a prescription for an antidepressant.
(Tr. 330). On September 15, 2011, therapist Laura Still noted that plaintiff’s mood
was good and she did not seem overwhelmed. She had completed her court-ordered
community service, but would not apply for jobs because she was scheduled for a
hearing with the ALJ. She was continuing to work on completing tasks necessary to
regain custody of her children. (Tr. 349). In October 2011, plaintiff’s primary care
physician increased her daily dosage of Adderall from 20 to 30 mg. (Tr. 330). In
January 2012, Laura Still noted that plaintiff had a positive attitude and felt that the
family had made significant progress in the last year. (Tr. 389). Plaintiff reported that
she had not taken Xanax for a few weeks. (Tr. 392). In February 2012, plaintiff told
her medical provider that she felt better overall. (Tr. 331).
On May 18, 2012, Laura Still completed a medical source statement. (Tr. 32527). She opined that plaintiff had marked limitations in the ability to make work
related judgments in simple and complex situations, carry out complex instructions,
interact appropriately with the public, supervisors, and coworkers, and respond
appropriately to usual work situations and to changes in routine. She had moderate
limitations in the ability to understand, remember, and carry out simple instructions,
and to understand and remember complex instructions. Ms. Still noted that plaintiff
“gets overwhelmed then shuts down. She is also oppositional. If told or pressured to
do something she gets defiant. She has low energy.” (Tr. 324). Her problems started
in childhood. She was able to manage benefits but did not make the best financial
On July 2, 2012, Dr. Harden completed a second psychiatric evaluation of
plaintiff. (Tr. 338-42). Plaintiff reported that she was disabled because she was “slow
at stuff like reading and easily distracted.” Her current medications – Adderall and the
antidepressant Pristiq – provided some benefit after she took her morning doses. She
reported that she was able to manage her own money, medications and hygiene, and
could complete her own housekeeping, cooking, and shopping. She was able to drive
short distances, but became drowsy if she drove for longer periods. She reported
having infrequent social contact with others. On examination, plaintiff was noted to
be on time, with casual attire and satisfactory grooming. She showed interactive eye
contact and a cooperative attitude, although her affect was bland. She displayed
logical thought processes and had no speech eccentricities. She described her mood
as vacillating between anger and sorrow. She had no difficulties with sleep, appetite
Her concentration was adequate when taking Adderall.
plaintiff’s cognitive functioning, Dr. Harden found that plaintiff’s general fund of
information, concentration and memory were adequate. She displayed a capacity to
correctly interpret a simple proverb and was able to concentrate sufficiently to reverse
her zip code. She displayed appropriate insight into her own situation. Dr. Harden’s
diagnostic impressions included bipolar disorder I per history. He assigned plaintiff a
GAF of 65 for current level of functioning and a GAF of 70 for highest level of
functioning in the past year. In a discussion section, Dr. Harden noted that plaintiff
denied having ongoing significant restriction in daily activities due to emotional
He further noted that plaintiff showed no significant difficulties with
concentration, persistence, or pace of task completion. “She sounds to have been a
somewhat emotionally sensitive person in various employments having felt that those
around her were critical of her.” (Tr. 340). Dr. Harden completed a medical source
statement in which he opined that plaintiff had no limitations beyond a mild limitation
in the ability to make judgments on complex work-related decisions. (Tr. 334-36).
III. The ALJ’s Decision
In the decision issued on July 17, 2012, the ALJ made the following findings:
Plaintiff met the insured status requirements of the Social Security Act
through June 30, 2006.
Plaintiff has not engaged in substantial gainful activity since March 23,
2011, the alleged onset date.
Plaintiff has the following severe impairments: obesity, right shoulder
tendonitis, carpal tunnel syndrome, bilateral meralgia paresthetica,
affective disorder, and anxiety disorder.
Plaintiff does not have an impairment or combination of impairments that
meet or medically equal the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity to perform medium work as
defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except she is limited
to understanding, remembering and carry out simple instructions. She
can use judgment and relate to supervisors, coworkers, and usual work
situations, and can deal with changes in a routine work setting.
Plaintiff is capable of performing her past relevant work as a poultry
Plaintiff has not been under a disability within the meaning of the Social
Security Act at any time from March 31, 2011 through the date of the
IV. Legal Standards
The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2001)). If, after reviewing the record, the Court finds it possible to
draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the Court must affirm the decision of the
Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
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); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) 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. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). “RFC is an administrative
assessment of the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical
records, observations by treating physicians and others, and an individual’s own
description of his limitations.”
Moore, 572 F.3d at 523 (quotation and citation
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
“Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff argues that the ALJ erred in not according controlling weight to the
opinion of her therapist; incorrectly determined that her mental impairments do not
meet the requirements of a listing; and incorrectly assessed her credibility.
A. Opinion of Laura Still
Laura Still found that plaintiff had marked impairments in the abilities to make
work-related judgments in simple and complex situations; to carry out complex
instructions; to interact appropriately with the public, supervisors, and coworkers; and
to respond appropriately to usual work situations and to changes in routine. Plaintiff
alleges that the ALJ erred by giving Ms. Still’s opinion little weight. (Tr. 20).
Laura Still is an licensed clinical social worker and therefore is not an “acceptable
medical source” as defined in the Social Security regulations. Nishke v. Astrue, 878
F. Supp. 2d 958, 983 (E.D. Mo. 2012) (citing 20 C.F.R. §§ 404.1513(a)). In Social
Security Ruling 06-03p, the Social Security Administration clarified the consideration
to be given to sources not classified as “acceptable medical sources.” See Sloan v.
Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (discussing SSR 06-03p). According to the
ruling, it is appropriate to consider such factors as “the nature and extent of the
relationship between the source and the individual, the source’s qualifications, the
source’s area of specialty or expertise, the degree to which the source presents
relevant evidence to support his or her opinion, whether the opinion is consistent with
other evidence, and any other factors that tend to support or refute the opinion.” SSR
06-03p, 2006 WL 2263437.
Information from these “other sources” cannot establish the existence of
a medically determinable impairment, according to SSR 06–3p. Instead,
there must be evidence from an “acceptable medical source” for this
purpose. However, information from such “other sources” may . . .
provide insight into the severity of the impairment(s) and how it affects
the individual’s ability to function.
Sloan, 499 F.3d at 888. In determining what weight to give the opinion of an “other
source,” the ALJ has more discretion and is permitted to consider any inconsistencies
found within the record. See Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005)
(discussing weight given to opinion of treating therapist). The ALJ does not err by
discounting the opinion of a treating therapist that is inconsistent with objective
psychological tests, is inherently inconsistent, or is inconsistent with other evidence in
the record. Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006).
Plaintiff argues that the ALJ should have given greater weight to the opinion of
Laura Still because she saw plaintiff for 36 visits. The ALJ noted that Laura Still’s
assessment was inconsistent with her treatment notes in which she indicated that
plaintiff had made progress. In addition, Laura Still’s assessment is inconsistent with
the evaluations completed by Rebecca Still and Dr. Tichenor, both of whom assigned
plaintiff GAF scores of 55, indicating the presence of only moderate symptoms.7
Plaintiff notes that on May 3, 2011, Dr. Harden assessed plaintiff with a current GAF
of 50, which supports a finding of severe impairments.
However, Dr. Harden
reevaluated plaintiff on July 2, 2012, and found that her GAF was 60. Finally, the ALJ
The Social Security Administration does not consider GAF scores to “have a
direct correlation to the severity requirements.” Myers v. Colvin, 721 F.3d 521, 525
(8th Cir. 2013) (quoting Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 65 Fed.Reg. 50746, 50764-65 (Aug. 21, 2000)). However, the
Eighth Circuit considers the GAF scores in reviewing an ALJ’s determination that a
treating source’s opinion was inconsistent with the treatment record. Id. (citing Goff
v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)).
found that Laura Still’s assessment was inconsistent with plaintiff’s activities of daily
living (discussed below). The ALJ did not err in giving little weight to the opinion of
B. Listings 12.04 and 12.06
The ALJ found that plaintiff had the severe mental impairments of affective
disorder and anxiety disorder. Plaintiff asserts that the ALJ erred in failing to find that
her impairments meet the requirements for Listing 12.04, pertaining to affective
disorders, and Listing 12.06, pertaining to anxiety-related disorders. 20 C.F.R. § 404,
Each Listing provides sets of criteria—titled A, B, and C—which a claimant must
satisfy in various combinations to qualify. Id. Paragraph A sets forth the criteria to
determine the presence of a specific mental disorder. Id. Paragraphs B and C set forth
criteria describing impairment-related functional limitations; these limitations must be
the result of the mental disorder found in Paragraph A. Id.
Plaintiff 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
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. 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.” Id. The severity standards for Listing-level impairments
are high, because “the listings [for adults] were designed to operate as a presumption
of disability that makes further inquiry unnecessary[.]” Malott v. Colvin, 4:13-00877CV-W-NKL, 2014 WL 2759421, at *3 (W.D. Mo. June 18, 2014) (quoting Sullivan v.
Zebley, 493 U.S. 521, 532 (1990) (alterations in original)). It is the plaintiff’s burden
to show that she meets all of the specified criteria of a Listing. Id. (citing Boettcher v.
Astrue, 652 F.3d 860, 863-64 (8th Cir. 2011); Carlson v. Astrue, 604 F.3d 589, 593
(8th Cir. 2010)).
The ALJ determined that plaintiff had mild restrictions of the activities of daily
living. He noted that plaintiff picked up her children from foster care every weekend
and took them to visit other relatives. She had never missed this routine due to her
impairments. She was able to drive, cook, do laundry, clean her house, go shopping,
and do some yard work. She reported that she could manage her money, medications,
and hygiene, and liked reading and spending time on the computer. (Tr. 14-15).
Plaintiff argues that the ALJ ignored the evidence that she had marked limitations in
“the daily activity of properly parenting her children.” Pl. Brief at 10 [Doc. #14].
Evidence in the record supports a determination that plaintiff’s parenting difficulties
arose from significant family dysfunction, rather than plaintiff’s alleged affective or
anxiety disorders: plaintiff’s children were removed from her care following an instance
of extreme abuse, her husband faced possible imprisonment for that abuse, her oldest
son displayed increasing levels of aggression, and the family had financial troubles.
Plaintiff has not met her burden to establish that she had marked difficulties in the
activities of daily living due to a mental impairment.
The ALJ found that plaintiff had moderate difficulties in the area of social
functioning, citing her testimony that she visited with relatives on weekends,
occasionally attended church, talked with family members on the phone, and shopped
in stores. He also noted that she did not like strict or critical bosses but felt she could
get along with bosses if they were nice. Plaintiff cites her March 2011 scores on
various MMPI scales to support her claim that she suffers from marked difficulties in
the areas of forming supportive relationships and social discomfort. (Tr. 274-75).
However, the examiner noted that there was a possibility that plaintiff’s MMPI profile
“lacked accuracy due to exaggeration of psychopathology.” (Tr. 274). Plaintiff also
cites her elevated scores in tests of social phobia and worry or fears. (Tr. 277).
However, shortly after beginning counseling, plaintiff reported that her mood had
improved and she felt good about accomplishing things around the house with her
husband. (Tr. 369). Furthermore, in January and February 2012, plaintiff apparently
felt well enough to stop taking Xanax to treat her anxiety. (Tr. 392, 331). “If an
impairment can be controlled by treatment or medication, it cannot be considered
disabling.” Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (citation omitted).
Finally, Dr. Tichenor found that plaintiff’s ability interact socially and adapt was lower
than average, but not so low as to preclude employment. (Tr. 301).
The ALJ found that plaintiff had moderate difficulties with concentration,
persistence, and pace. He noted that plaintiff told Dr. Harden that Adderall improved
her concentration. In addition, Dr. Tichenor opined that plaintiff’s ability to concentrate
and sustain on-task performance was not so low as to preclude gainful employment.
(Tr. 301). Finally, plaintiff reported that she was able to finish what she started and
to get done what needed to be completed on any given day. Plaintiff argues that her
inability to complete the tasks necessary for having custody of her children returned
to her demonstrates marked limitations in concentration, persistence, and pace. Dr.
Tichenor attributed these deficits to plaintiff’s legal and child difficulties and opined that
her emotional difficulties were likely to be temporary if she received appropriate
Plaintiff argues that the ALJ failed to fulfill his duty to fully develop the record.
When Dr. Tichenor completed his DSM-IV diagnostic impressions, he included the
notation “Axis II: R/O Borderline Mental Retardation.” (Tr. 301). Plaintiff asserts that
this notation means that Dr. Tichenor “wanted to rule out mental retardation” and that
the ALJ was required to seek additional information. A social security hearing is a
nonadversarial proceeding and the ALJ has the duty to fully develop the record. Smith
v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006); Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). While the ALJ must neutrally develop the facts, the ALJ need not seek
additional clarifying statements from a physician unless a crucial issue is undeveloped.
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004); see also Smith, 435 F.3d at
930 (ALJ’s “duty may include seeking clarification from treating physicians if a crucial
issue is undeveloped or underdeveloped). The ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as the evidence in the record
provides a sufficient basis for the ALJ’s decision. Anderson v. Shalala, 51 F.3d 777,
779 (8th Cir. 1995).
The ALJ was not required to seek further development of the record in this case.
First, a “rule out” diagnosis does not reflect a clinician’s request to complete additional
evaluation. See Brumfield v. Colvin, 12-3033-CV-S-REL-SSA, 2013 WL 1121348 n.15
(W.D. Mo. Mar. 18, 2013) (“[T]he term ‘Rule Out’ just prior to a diagnosis [is used] to
indicate that not enough information exists to make the diagnosis, but it must be
considered as an alternative.”) Second, while Dr. Tichenor identified plaintiff’s “less
than average learning ability” as a factor in her ability to obtain and maintain
employment, he did not say that her cognitive functioning precluded employment.
Furthermore, he did not administer any formal tests of her cognitive functioning and
thus his Axis II diagnosis is not entitled to great weight. Both Rebecca Still and Dr.
Harden did conduct limited assessments of plaintiff’s cognitive functioning; Rebecca
Still found that plaintiff functioned in the low average range of cognitive ability and Dr
Harden did not find evidence of impairments precluding work activity. (Tr. 272, 32022). The record provides a sufficient basis for the ALJ’s decision and he was not
required to further develop the record.
C. Credibility Determination
Plaintiff asserts that the ALJ conducted an improper “boilerplate” credibility
The ALJ found that plaintiff’s “statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not fully supported. To the extent they are
found credible, they are accommodated in the [RFC] assessment.” (Tr. 23). As
plaintiff points out, the Seventh Circuit has harshly criticized similar summations of a
claimant’s credibility. Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).
Such boilerplate language fails to inform us in a meaningful, reviewable way of
the specific evidence the ALJ considered in determining that claimant's
complaints were not credible. More troubling, it appears that the Commissioner
has repeatedly been using this same boilerplate paragraph to reject the
testimony of numerous claimants, without linking the conclusory statements
contained therein to evidence in the record or even tailoring the paragraph to
the facts at hand, almost without regard to whether the boilerplate paragraph
has any relevance to the case.
Id. (citation omitted).
Plaintiff’s point would be well-taken if the ALJ had merely relied on the
“boilerplate language.” In this case, however, the ALJ conducted a thorough credibility
analysis, considering plaintiff’s activities of daily living, her testimony, the objective
medical evidence, her compliance with treatment, the effectiveness of treatment, and
medical opinion evidence. (Tr. 22-23).
Plaintiff also argues that the ALJ placed too much weight on her activities of
daily living, again citing her inability to parent her children. The ALJ concluded that
plaintiff’s legal problems, her children’s poor behavior, inadequate social support, and
inadequate finances “are not normally considered . . . in determining a claimant’s
ability to perform work-related activities.” Tr. 19. A finding of disability must be based
solely upon the presence of a medically determinable physical or mental impairment,
and not the kind of social dysfunction plaintiff cites. 42 U.S.C. § 1382c(a)(3)(A). The
ALJ did not err in his assessment of plaintiff’s credibility.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of February, 2015.
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