McAlister v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the commissioner is affirmed. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on March 18, 2015. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
REBECCA D. MCALISTER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Case No. 2:14CV1 CDP
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for
judicial review of the Commissioner’s final decision denying Rebecca D.
McAlister’s application for supplemental security income (SSI) under Title XVI of
the Social Security Act. 42 U.S.C. §§ 1381 et seq. McAlister claims she is
disabled due to a combination of impairments including a learning disability,
migraines, bipolar disorder, depression, sleep apnea, fatigue and back pain. After a
hearing, the Administrative Law Judge concluded that McAlister is not disabled.
Because I conclude that the ALJ’s decision is supported by substantial evidence in
the record as a whole, I will affirm the decision.
McAlister filed her application on February 16, 2011. She alleged a
disability onset date of October 1, 2010. When her application was denied, she
requested a hearing before an administrative law judge. She then appeared at an
administrative hearing on July 11, 2012, where she was represented by counsel.
McAlister and a vocational expert testified at the hearing.
After the hearing, the ALJ denied McAlister’s application in a decision
dated November 9, 2012, and McAlister appealed to the Appeals Council. On
December 13, 2013, the Council denied her request for review. The ALJ’s
decision thereby became the final decision of the Commissioner. Van Vickle v.
Astrue, 539 F.3d 825, 828 (8th Cir. 2008).
McAlister now appeals to this court. She argues that: (1) the ALJ erred in
not according controlling weight to the opinion of her treating physician Dr. David
Goldman; (2) the ALJ erred in finding that her mental impairments do not meet a
listing under sections 12.04 or 12.06 of 20 C.F.R. pt. 404, supt. P, app. 1; and (3)
the ALJ’s credibility determination is “patently erroneous.” McAlister claims
these mistakes led to a decision by the ALJ that was not supported by substantial
evidence in the record and should be reversed or remanded for further evaluation.
Evidence before the Administrative Law Judge
Prior Disability Decision
In addition to the disability application currently at issue, McAlister
previously filed applications for disability insurance benefits and supplemental
security income on May 9, 2005. These claims were dismissed by an ALJ in an
Order of Dismissal dated August 31, 2007, due to McAlister’s failure to appear at
the scheduled hearing.
In support of her application, McAlister completed a function report in
February 2011. She reported that she lived with her boyfriend, Ron Bruce. She
wrote that her daily activities consisted of watching television, taking naps,
cooking her own meals, bathing, and going to the store or to a family member’s
house for a visit. She reported that she feeds the pet cat and changes its litter box.
She wrote that she has a sleep disorder due to her conditions but has no problem
with personal care and needs no reminders to take care of personal needs or
grooming. She wrote that she does need reminders to take medicine. McAlister
checked boxes indicating that she is able to do laundry, mop, sweep, clean dishes
and occasionally help in the yard. She reported that she goes outside daily and is
able to go out alone, and when she goes out she walks, drives a car, or rides in a
car. She wrote that she goes shopping once a month for about an hour and is able
to pay bills and count change.
Socially, McAlister reported that she regularly goes to her family members’
homes, and she spends time with others on the phone, on the computer, and in
person. Since the onset of her condition, McAlister wrote that she forgets things,
doesn’t understand things very well, and has occasional problems following
instructions, particularly spoken instructions. She also has difficulty getting along
with other people, particularly her family, and since the onset of her condition she
stays more to herself. She reported that she has no problem with authority figures
and does what she is told to do but was fired from her job at McDonald’s for not
getting along with others. She reported that she has difficulty handling stress and
changes in routine. In a Missouri supplemental questionnaire, McAlister noted that
she has never had a valid driver’s license because she could not pass the test.
(Transcript at 157-167).
McAlister’s boyfriend, Ron Bruce, completed a third party function report
for her in February 2011 that largely coincides with hers. He wrote that he had
known McAlister for 16 years and her daily activities include watching television,
playing computer games and talking to people on the computer. She also helps
him care for their cat. He reported that since the onset of her condition, McAlister
has trouble understanding instructions, gets upset over small things, and has a lack
of motivation. She needs to be reminded to take her medicine but is able to prepare
meals by herself and can do household chores like cleaning and laundry. He
reported that she goes outside “all the time,” can go out alone, walk, drive a car,
and ride in a car. She shops once a month for an hour, can count change and can
pay bills “as long as she knows how much to pay.”
He wrote that since the onset of her condition McAlister tends to lose money
more or forget where she put it. For social activities, Bruce wrote that she spends
time with others on the computer and phone and regularly goes to family members’
houses, although she has trouble getting along with them. Since the onset of her
condition, Bruce reported that McAlister has become less social, she has trouble
understanding and completing tasks, gets distracted easily, and has trouble
remembering things. He wrote that McAlister does not follow written instructions
very well “if you don’t show her and explain” and spoken instructions must be
repeated to her often. Bruce reported that while McAlister has no problems with
authority figures, she was fired for not getting along with others at her job. He
wrote that under stress she will cry “or go hide” and if there are changes to her
routine “she will shut down and not talk like she is in a daze.” (Tr. 168-175).
High School Transcript
McAlister’s high school transcript from South Shelby High School for the
1998-99 school year indicates she completed 6.5 of 7.0 credits attempted and had a
GPA of 1.64 for the year. (Tr. 176).
From July 12 to September 20, 2010, there are outpatient discharge notes from
McAlister’s regular prenatal visits to Hannibal Regional Hospital. (Tr. 249-259).
On October 4, 2010, McAlister was seen by Dr. Aziz Doumit at the
Hannibal Regional Hospital emergency room for vaginal bleeding two days after
giving birth to her son. Dr. Doumit’s report states that McAlister is “a well
appearing, well-nourished individual” whose hygiene is good and who is dressed
to season. The report notes that her mood and manner are appropriate. (Tr. 228244)
On November 20, 2010, McAlister presented at the Hannibal Regional
Hospital complaining of an insect bite. The hospital notes indicate that she did not
report feeling sad, anxious, overwhelmed, or helpless. It describes her affect as
calm and appropriate. (Tr. 222-27).
Once in May and twice in July 2010, McAlister presented at Hannibal
Regional Hospital complaining of a migraine headache. Twice she was given
intravenous Phenergen and discharged. Once, she was given intravenous
Compazine and discharged. During her second July visit, the hospital notes state
McAlister reported several times that her headaches may have developed
“secondary to multiple verbal disputes with her significant other.” (Tr. 260-68,
Mental Health History
McAlister was seen by nurse practitioner Mary Chapel at the Hannibal
Clinic on August 3, 2010. She complained of a one-week history of frequent
crying and mood swings. The report notes McAlister stated she had been
diagnosed with bipolar and placed on Carbatrol three years previously but she had
not taken any of the medication for “some time.” (Tr. 671).
On September 3, McAlister was seen at the Community Health Center for
complaints that she was crying all the time. The report from this visit notes that
she is pregnant; another note states that she was told to return after the birth of her
child. (Tr. 218-219). On October 26, 2010, McAlister was again seen at the
Community Health Center. The clinic report from the visit indicates McAlister
was on medication for her migraines. Her chief complaint is listed as “needs to get
back on med.” At this visit she was referred to counseling and prescribed Depakote
for bipolar disorder. Her affect, mood and memory are listed as normal. (Tr. 217).
On March 16, 2011, clinical psychologist Dr. Frank Froman provided
McAlister with a Mental Status Examination at the request of Disability
Determinations of Jefferson City, Missouri. His report indicates he spent 45
minutes with McAlister, and she was “casually and neatly attired and of excellent
hygiene.” Froman reported that McAlister was in special education throughout
school and has completed the eighth grade. When she was in ninth grade, because
of the severity of her learning problems, the principal said it would be better to
drop out because her needs were taking too much of the teacher’s time. Froman’s
report indicates McAlister complained of migraines and sleeping problems. She
told him she takes Trazodone to sleep, ibuprofen for pain, hydroxyzine, and
Depakote for bipolar disorder.
Froman noted that McAlister
…presented in a slightly anxious and somewhat odd fashion. She had
the characteristic stare of one who was slightly schizoidal. Her ability
to relate was just fair. She was nervous but presented with clear
speech. I often had to clarify questions for her, since things had to be
presented quite concretely.
Froman reported that McAlister socializes minimally, does not have a
drivers’ license and for hobbies she plays on the computer and walks in the park
with her boyfriend. He further reported that she could name no current presidents
except Clinton and knew no large cities except Quincy and Chicago. She
incorrectly added 9 plus 6, could not multiply, subtract or perform serial 7s.
Froman noted that McAlister alleged she was given Ritalin when she was
younger for ADHD and has never been able to focus. She reported suffering
episodically from down moods during which she can be “nasty and mean spirited.”
Her medication does not fully alleviate her down moods. Froman noted that
without prior documentation it was unclear as to whether McAlister still suffers
from a true bipolar disorder.
In his report, Froman concluded that McAlister has low borderline to high
mentally retarded intellectual functions; functional illiteracy; a history of
migraines; moderately severe psychological issues and a GAF of 50. He reported:
Rebecca appears to function at a fairly slow rate, and it is doubtful
that she would be able to perform one or two step assemblies at or
even near a competitive rate. Her ability to relate effectively to coworkers and supervisors is limited by considerable lack of confidence,
distrust with others, and a sense of alienation and distance. In
addition, it appears that she has few, if any, executive skills. She also
appears to be ill formed as a person, with a very weakened character
structure and an almost non-existent self concept.
She is not able to understand any but the most simple and straight
forward oral instructions. She is unable to read, unable to manage
benefits, and appears unlikely to be able to withstand the stress
associated with customary employment until such time as she might
be “work hardened,” and in a developmental training program that
would allow her to learn competitive skills, and ultimately “get on her
After Froman’s examination, Margaret Sullivan, PhD, completed a
Psychiatric Review Technique for McAlister on April 6, 2011. She concluded that
McAlister suffers from medically determinable impairments of ADHD and
borderline cognition, as well as bipolar disorder, but the impairments do not
precisely satisfy the diagnostic criteria listed on the form. She reported that these
impairments cause a mild restriction in the activities of daily living, moderate
difficulties in maintaining social function and concentration, persistence or pace,
but no repeated episodes of decompensation. In her written notes, Sullivan
reported that notes from McAlister’s ER visits in 2010 show no depression or
anxiety, and report normal mood, affect and mentation. Sullivan noted that at a
November 20, 2010 visit to the ER for an insect bite, McAlister denied feeling sad
or anxious, over-whelmed and/or hopeless, and mental status showed her affect
was calm and appropriate. She noted McAlister has a “significant legal history
with incarceration and probation.” She went on to summarize much of Dr.
Froman’s report. Finally, she noted that McAlister’s mental status examination in
the ER showed her function was not as impaired as her clinical mental status
examination indicated. Sullivan noted that in the past, McAlister has been
successful at minimally skilled tasks in an environment that restricts her social
contact. (Tr. 297-307).
On November 21, 2011, an initial psychosocial/clinical assessment for the
Missouri Department of Mental Health, Division of Comprehensive Psychiatric
Services was completed by Emilee Hill, MEC, LPC, RASAC II. The report states
McAlister was referred to the Community Psychiatric Rehabilitation Program
(CPRP) by Mark Twain Behavioral Health (MTBH) and is signed by staff
members at MTBH, including psychiatrist Dr. David E. Goldman. The report
states McAlister presented to her interview with “adequate hygiene.” The report
notes that McAlister states she has problems with asthma, migraines, sleeping
disorder, seizures, blindness in her right eye and scoliosis. She is on multiple
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medications and has been having seizures, with her most recent one occurring a
month prior to the assessment. McAlister stated she experiences seizures once a
month. McAlister reported she has trouble sleeping and has problems with anxiety
and depressed mood, but denied problems with anger. The report indicates
McAlister’s interview behavior was cooperative, her flow of thought was normal,
and she stated her mood was “good,” which was congruent with her affect. The
report notes that her intellect appears slightly below normal, though her insight and
judgment appear fair with regard to the importance of her treatment.
The report lists McAlister’s diagnoses as bipolar disorder, post-traumatic
stress disorder and learning disorder. It also states she has asthma, migraines,
seizures, blindness in her right eye, and scoliosis. She has moderate occupational
problems, severe economic problems, mild legal problems and moderate problems
with daily living skills. It lists her GAF (Axis V) as “[c]urrent 55, past 65.” The
report states McAlister has a driver’s license and that McAlister indicated she
enjoys doing crosswords, playing on the computer and reading. She stated she has
a lot of friends and listed approximately nine first names. The report notes that
McAlister is motivated for treatment and recognizes the importance of treating her
symptoms. She carries a medication list with her. (Tr. 332-37).
A Missouri Department of Mental Health Individual Treatment and
Rehabilitation Plan was also created for McAlister on November 21, 2011. It
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recommends her participation in the CPRP and states that she will learn to manage
the symptoms of her mental illness by taking medications, following treatment
recommendations, developing coping skills and building supportive relationships.
The plan states McAlister will see Dr. David Goldman for a psychiatric evaluation
and attend psychiatric appointments and other MTBH appointments, and take
medications as prescribed. (Tr. 349-352).
From December 2, 2011, to March 30, 2012, the medical records indicate
McAlister met regularly with Genia Perry, CSS/MS/CMA, a community support
specialist with MTBH. She met with Perry as part of what appears to be a
complete and integrated program of counseling and psychiatric services provided
to her by MTBH. Perry completed progress notes documenting her meetings with
McAlister. Those notes consistently indicate that although McAlister generally
responds appropriately to the support provided, her “limited intellectual
functioning” interferes with her ability to grasp concepts, identify and discuss
issues in her life, and follow through with suitable solutions. Perry reported that
McAlister struggles with attaching emotions to the appropriate source. The notes
indicate McAlister kept a list of her medications in her purse and was able to
properly discuss her medications upon referencing the list. (Tr. 310-329).
It appears that as part of her program with MTBH, McAlister also had
several therapy sessions with Janice Winn, MED/PLPC during January, February,
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and March 2012. Notes from these sessions indicate McAlister, for the most part,
was “clean” and able to discuss her concerns and stressors in an appropriate
manner. (Tr. 344-48).
The medical records indicate that McAlister began seeing her treating
psychiatrist, Dr. David Goldman of MTBH in early 2012. His January 9, 2012
report, from what appears to have been their first meeting, states that McAlister is
on various medications including Hydroxyzine, Prochlorperazine, Depakote,
Trazodone, Meloxicam, and Carbatrol. Goldman’s notes indicate McAlister was
polite, cooperative and conversant. She maintained good eye contact and was
oriented to person, place, time and situation, but she was unable to name the
current president. She could spell “world” backward correctly, with minor
hesitation; after five minutes, she recalled three words she was given correctly and
in the same order that they were originally presented. She stated her main goal for
the appointment was to get back on her medication. Goldman reported his
Axis I: Bipolar disorder type I most recent episode mixed, moderate
Axis II: Deferred
Axis III: Seizure disorder; migraine headaches; sleep disorder NOS
(insomnia); current GI distress that is being evaluated by her
Axis IV: Severe
Axis V: 45
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He noted that McAlister’s Depakote and Trazodone medication doses would
be adjusted upward by him, and McAlister would follow-up with him in 3-4 weeks
and would continue to follow up with her family practice physician and
neurologist. On January 30, 2012, Goldman completed a psychiatric progress note
for McAlister. She reported to him that she was doing well, and he continued her
current medication regimen of Trazodone and Depakote. Goldman completed
another psychiatric progress note on March 19, 2012 in which he reported he was
increasing her Depakote level. (Tr. 341-43).
A quarterly review of McAlister’s progress was held by MTBH on January
17, 2012. The quarterly review report notes that McAlister has continued to
schedule and attend all psychiatric appointments on her own and has not identified
or verbalized any difficulties in association with these responsibilities. She has
continued to participate in all nursing clinics associated with her psychiatric
appointments. She has identified depression and anger as her primary symptoms
but denied any recent major concerns in association with anxiety. (Tr. 330-31).
On July 22, 2011 McAlister was seen by the Hannibal Regional Medical
Group for complaints of seizures. The group’s report notes that she complained of
having a seizure on July 20 lasting thirty minutes, accompanied by a loss of
awareness, and followed by confusion, drowsiness, headache and weakness. The
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report states that according to McAlister, she was diagnosed with seizures in 2007
and was sent to Columbia, Missouri for evaluation but failed to make it to her
follow-up appointment because her husband would not let her go. She had one
seizure during a 2007 pregnancy, was seen by Dr. Hosley and placed on Topamax,
which she only took for 30 days. She had not had a seizure since that time. (Tr.
Three days later, on July 25, 2011, McAlister presented at Hannibal
Regional Hospital for recurrent seizure activity. She reported having had four
seizures that day. (Tr. 397- 424). McAlister attended a follow-up appointment at
Hannibal Regional Medical Group on August 8, 2011 for her complaint of
seizures. McAlister stated she had not had a seizure since her last appointment.
On August 31, 2011, McAlister was seen by neurologist Brett Hosley in
consultation for her reported seizures. Dr. Hosley’s notes state that the information
McAlister gave him during the consultation “differ[ed] from one point in the
examination to the next. It also differ[ed] from what previous records indicate.”
He noted that when he tried to get more details about her seizures she again gave
him varying and inconsistent information. According to his report, McAlister
claimed she first had seizures in 2006. She told Hosley that she had been having
episodes about every two to three weeks since the onset of the seizures, but she
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also told him, conflictingly, that she had not had any seizures while taking certain
medication. Additionally, Hosley’s report notes that the emergency department
records indicated McAlister said she had not had a seizure for over a year prior to a
seizure she had in July 2011. Hosley reported McAlister stated she also has
McAlister also told Hosley that she was put on Topamax for seizures right
after her first episode in 2006. She was switched to another medicine shortly
afterward due to pregnancy but then ran out of that medicine in 2007. Hosley
reported that the Hannibal Regional Hospital notes indicated McAlister reported a
seizure on July 20, then four seizures on July 25. Hosley’s report indicates
McAlister told him she had not been taking any of her medicines like she was
supposed to and has difficulty taking medicine. She had not taken Depakote for
her bipolar disorder for four weeks.
Dr. Hosley reported that McAlister’s mental status was within normal limits
for her age but she had a “somewhat blunted affect.” Dr. Hosley ordered an EEG,
an MRI scan of McAlister’s brain, started her on Carbatrol and recommended she
contact Mark Twain Mental Health for a psychiatric evaluation. (Tr. 683-89).
On September 5, 2011, McAlister was seen at the Hannibal Regional
Hospital for complaints of dizziness. It was determined that she was having a
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reaction to Carbatrol. She was ordered to stop her Carbatrol and call Hosley in the
morning. (Tr. 470-481).
Dr. Hosley’s next note regarding McAlister is dated September 6, 2011. His
report indicates he received her medical records regarding her seizure problems
from 2006. McAlister was seen primarily by Dr. Faisal Rajain in Columbia,
Missouri. Those records noted the doctor’s conclusion that the spells she was
having were not epileptic seizures.
Dr. Hosley’s September 6 report also states that the Hannibal Regional
Hospital emergency department had recently contacted him because McAlister had
come to the ER complaining of dizziness after starting the Carbatrol he prescribed.
He told the ER to tell her stop the medicine and to contact him in the morning. She
failed to contact him, so his office contacted her. She reported that along with
starting her Cabatrol, she had also started herself back up on all the other
medications she had told Dr. Hosley she was no longer taking at their last visit.
She did this without the guidance or oversight of a doctor, which meant she started
all the medications back up around the same time at maximum dosage without
them being “titrated upward.” Dr. Hosley’s report states it may be that her
dizziness was related not to the Carbatrol alone but to her starting all of her
medications at maximum dosage at the same time. He told her to continue the
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Cabatrol and stressed to her the importance of not changing her medications on her
own without talking to a doctor. (Tr. 690-92)
As ordered by Dr. Hosley, on September 9, 2011 a brain MRI was done on
McAlister. It revealed a Chiari I malformation (Tr. 680); as a result, a follow-up
MRI of the cervical spine was done on October 3, 2011. The results of the cervical
spine MRI were normal. (Tr. 679). Additionally, on September 9, 2011 McAlister
received the EEG ordered by Dr. Hosley, and the results were normal. (Tr. 681).
Dr. Hosley next saw McAlister on September 14, 2011. His report from that
date indicates she reported having one seizure since her last visit, which she
described as shaking all over the right side of her body and lightheadedness, all of
which resolved within 20 minutes. His report notes that she was generally
cooperative throughout the exam, but states that she had been “very noncompliant”
in the use of her medication. An addendum to this report states that her serum
levels from this visit indicated she was still not taking her medications
appropriately. He encouraged her to follow up with Mark Twain Area Counseling
for a psychiatric evaluation. A later note from Dr. Hosley reported he made
arrangements for McAlister to be seen by University of Missouri epilepsy
Department on October 21, 2011, but she failed to keep the appointment because
she “ran out of gas or something.” She was supposed to follow up with Dr. Hosley
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four weeks after her September 14 appointment, but failed to do that as well. (Tr.
On October 3, 2011, McAlister went back to Hannibal Regional Medical
Group for a recheck of seizures. The report states McAlister said she had had no
seizures since Dr. Hosley put her on Carbatrol. (Tr. 446-48).
On April 2, 2012 McAlister attended an appointment with Dr. Hosley. The
appointment was scheduled after she called him on March 27, 2012 to report the
occurrence of two seizures that day. She reported that she had run out of
medication on March 23. The seizures lasted ten minutes and ten seconds
respectively. She had another seizure on March 28 of unknown duration.
McAlister had failed to schedule any follow-up appointments with Hosley since
her September 2011 appointment. Hosley’s notes from the April 2 visit indicate
McAlister reported regularly seeing her psychiatric care provider at Mark Twain
Area Counseling. He again noted that McAlister had a blunted affect. He
convinced her to reschedule her appointment with the epileptologist at Columbia,
Missouri for May 3, 2012. (Tr. 701-05).
McAlister presented to Hannibal Regional Hospital on April 24, 2012
complaining that she had fainted twice in the past two days. Both incidents were
un-witnessed and she was discharged the same day after being diagnosed with
syncope (fainting). (Tr. 730-750).
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On May 4, 2012 Dr. Hosley noted that McAlister called to say she had seen
the epileptologist at the University of Missouri, and he indicated her spells might
be related to her depression. She was scheduled for 72-hour video EEG
monitoring on July 2, 2012. (Tr. 801).
McAlister reported to Hannibal Regional Hospital on May 23, 2012
reporting dizziness she claimed was due to the medication Klonopin, which was
prescribed to her by her doctor in Columbia. She was discharged the following
day after being diagnosed with a drug reaction and ongoing urinary tract infection.
McAlister returned to see Dr. Hosley on May 30, 2012. His report from that
visit notes that since he had last seen her, she reported having three seizures – two
on May 18 and one on May 19. Two of the seizures lasted for five minutes and the
other one lasted for ten minutes. Afterward, she reported being groggy and not
knowing where she was. Prior to the seizures she had been talking about the
adoption of her young son, which had made her very upset. Dr. Hosley also noted
he had received records from the University of Missouri, where McAlister was
evaluated by Dr. Manjamalai Sivaraman. Sivaraman’s notes stated McAlister had
a several year history of generalized and right-sided shaking with loss of
consciousness but without evidence of incontinence of urine or stool or of biting
her tongue or lips. Shaking usually lasted 15-20 minutes and occurred twice per
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day. Sivaraman’s notes stated these spells were most likely consistent with
psychogenic, non-epileptic seizures due to the fact that many of them were
preceded by stress, and he ordered a video EEG. McAlister reported to Dr. Hosley
that after another shaking spell on May 21, the doctors in Columbia, Missouri
started her on Klonopin. She had a bad reaction to the drug, however, and they
told her to discontinue it on May 24. Between that time and the date of her visit to
Dr. Hosley, she had had no further issues.
Records Produced Subsequent to ALJ Hearing
Additional records from MTBH that were not available to the ALJ were
submitted by plaintiff to the Appeals Council in conjunction with her appeal. They
consist primarily of “Progress Note” forms completed by Genia Perry. The dates
of these approximately 24 notes run from April 5, 2012 to November 2, 2012. In
them, Perry has documented various concerns as well as points of progress by
McAlister. Her notes observe that McAlister’s “limited intellectual functioning
interferes with her ability to identify and verbalize problems as they occur,” that
McAlister interacted appropriately at most of their meetings, that McAlister denied
medication problems even though her medication count showed she had been not
been taking her medications as prescribed, that McAlister is “able to identify and
verbally express her feelings… but struggles with communicating her feelings and
needs in an assertive manner,” that she tends to express all emotions through anger,
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that her insight in relation to coping mechanisms continues to be limited, that she
has a “desire to continue working on her anger issues,” that she claimed to have
received paperwork confirming she would begin receiving disability benefits, that
her understanding of paperwork is questionable, that she could identify dates of
upcoming appointments, and that she struggles with sharing her emotions. (Tr.
In a meeting with Perry on July 27, 2012, McAlister indicated she had been
in a recent physical altercation with her brother’s sister. She stated that she was
offended by what the sister was saying and had responded physically. She
admitted that she tends to respond to stress in an unhealthy manner. (Tr. 833-34).
The new records also consist of two quarterly reviews done by McAlister’s
MTBH care providers. In an April 11, 2012 quarterly review it was reported that
McAlister had continued to schedule and attend all appointments at MTBH on her
own and had participated in all nursing clinics associated with her psychiatric
appointments. (Tr. 857-58). In a July 11, 2012 quarterly review it was reported
that McAlister had continued to schedule and attend all psychiatric appointments
and associated nursing clinics on her own, with minimal assistance from her
boyfriend. She had not expressed any difficulties in association with her
appointment responsibilities. (Tr. 855-56).
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The additional records also include an annual psychosocial/clinical
assessment, dated October 26, 2012, for the Missouri Department of Mental
Health, Division of Comprehensive Psychiatric Services. The report was
completed by Ted Oliver, MSW, LCSW, CRAADC and signed by McAlister’s
MTBH care providers. It states that McAlister came to the appointment with good
hygiene and grooming. Her thoughts were clear and goal directed. The report
states her affect was bland, but there was no evidence of retardation. Intellectually,
the report states McAlister is functioning at an average to below average level.
The report characterized McAlister’s diagnostic formulation as follows:
296.52 – Bipolar disorder, most recent episode depressed
309.81 – Post traumatic stress disorder by history
315.0 – Learning disorder, NOS
Blindness in right eye
32 – Occupational problems
52 – Economic problems – moderate
81 – Problems with daily living skills – mild
Current global assessment of functioning 55, highest during the past
McAlister indicated that she does all of the household management. The
report notes that she has a supportive relationship with her fiancé, reports to be
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medication compliant, and has multiple friends that she interacts with. It further
notes that during the meeting McAlister indicated she had been approved for
disability. McAlister identified herself as being easily annoyed by people and
having difficulty with her self-esteem. (Tr. 861-65).
Medical Source Statements
McAlister’s psychiatrist, Dr. David Eckstein Goldman, completed a Medical
Source Statement of Ability to Do Work-Related Activities (Mental) medical
source statement for her on June 29, 2012. He indicated McAlister’s ability to
understand, remember, and carry-out instructions is affected by her impairment.
His assessment notes that “[d]ue to limited intellectual function, patient unable to
process instructions either simple or complex. Patient unable to understand and/or
retain information.” He rated her restrictions related to understanding,
remembering and carrying out simple instructions as “marked.” He rated her
restrictions related to the ability to make simple, work-related decisions;
understand, remember, and carry-out complex instructions; and to make judgments
on complex work-related decisions as “extreme.”
Goldman indicated that McAlister’s ability to interact appropriately with
supervision, co-workers, and the public, and to respond to changes in the routine
work setting was affected by her impairments. He rated her restrictions related to
interacting with the public, with a supervisor and with co-workers as “marked.”
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He rated her restrictions related to responding appropriately to usual work
situations and to changes in a routine work setting as “extreme.” Goldman noted
that McAlister experiences extreme anxiety being with others. She is unable to
comprehend, retain and call upon information, which leads to frustration. She has
difficulty utilizing healthy coping skills.
Finally, Goldman noted that McAlister has difficulty with relationships and
implementing appropriate coping skills. He agreed with the onset date of her
disability as October 1, 2010. (Tr. 797-98).
Residual Function Capacity Assessment
Medical consultant Margaret Sullivan performed a mental residual
functional capacity assessment of McAlister on April 6, 2011. It does not appear
that this assessment was part of the record before the ALJ, but why it was not is
not clear. Her report concludes as follows:
Understanding and Memory – The claimant retains the ability
to understand and remember simple instruction.
Sustained Concentration and Persistence – The claimant can
carry out simple work instruction. The claimant can maintain
adequate attendance and sustain an ordinary routine without
Social Interaction – The claimant can interact adequately with
peers and supervisors in a work setting with limited social
Adaptation – The claimant can adapt to most usual changes
common to a competitive work setting.
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McAlister’s Testimony Before ALJ
At the administrative hearing before the ALJ on July 11, 2012, McAlister
testified that she attended school into but not completing 8th grade. She was
always in learning disabled classes and decided to leave school because a principal
told her she was wasting the teacher’s time. (Tr. 33).
McAlister testified that she does not have a driver’s license, has been
married twice and was, at the time of the hearing, engaged to be married again.
She testified that she has seven children, none of whom live with her and all of
whom, except the youngest, have been removed by DCFS and adopted. She
confirmed that she has had jobs in three different nursing homes, as a nurse’s aide
and as a housekeeper. She testified that the nurse’s aide jobs ended because she
was never able to pass the certified nurse’s aide classes and without a CNA license
she could not stay on the jobs. She testified that the housekeeper job ended
because she wanted to try staying home with her baby. She also previously
worked for a McDonald’s for 2-3 months but stated that job ended because her exhusband refused to take her to work. Finally, McAlister testified that she worked
for CNS International Ministries, a women’s program. While working there she
was assigned daily chores and frequently had difficulty remembering to do them.
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McAlister testified Dr. Goldman had been treating her for about a year. She
stated that she understood her diagnosis from him to be a learning disability and
indicated that he also had her on a sleeping medication and bipolar medication.
McAlister testified that due to her bipolar disorder, she typically has one or two
bad days a week, during which she takes out her stress on other people by “yelling
and screaming at each other.” On those days she will also sit and cry for 10-15
minutes at a time approximately twice a day. McAlister stated she has memory
problems and cannot remember what she is told to do very well. (Tr. 38-42). She
is on a sleeping medication that helps her sleep, but she still sometimes has bad
nights, which she characterized as nights where she gets three to four hours of
sleep. (Tr. 47-48).
McAlister indicated she has approximately two episodes of right-sided
shaking per week during which she loses consciousness. The episodes last ten
minutes or less and when she wakes up she is disoriented. She has seven to eight
migraines in a month, but takes ibuprofen for them. They generally resolve within
two hours of taking ibuprofen. (Tr. 48-49)
She testified that none of her jobs has lasted very long because she is unable
to get along with other people. She would always be fighting, and “not liking to
take responsibilities.” For instance, she argued with a lot of her co-workers at her
nurse’s aide jobs and would have to walk out of the building because she was
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worried she would hit someone. She testified she was given a three-day
suspension at one of these jobs. (Tr. 42-43).
McAlister testified to being in foster care from ages 3 to 10 and 11 to 13 due
to her mother’s alcoholism and abuse. She testified she was raped by her father at
ages three, twelve, and fifteen. She has been married twice before, and both
husbands were physically abusive. Currently she lives with her fiancé and is
helping care for his elderly mother in their home. (Tr. 43-47)
McAlister stated she has attempted to get her GED five times and failed.
She believes she is at a first grade reading level. (Tr. 50-51).
Vocational Expert’s Testimony
Vocational expert Bob Hammond also testified before the ALJ. He
classified prior jobs held by McAlister, long enough for her to learn them, as
follows: (1) cashier – light; (2) janitor – medium; and (3) fast food worker – light.
The ALJ then asked Hammond to consider a hypothetical individual under the age
of fifty with a seventh grade education, no GED, McAlister’s past work history and
who could lift twenty pounds occasionally, ten pounds frequently; stand and walk
six hours in an eight-hour day; sit six hours in an eight-hour day; never climb
ladders, robes or scaffolds; occasionally balance, kneel, crouch, crawl, stoop and
use ramps or stairs; never be exposed to dangerous, unprotected heights or moving
machinery. The ALJ’s hypothetical person could only perform simple routine
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tasks that involved primarily working with things rather than people; and social
interaction should be with co-workers and supervisors only, with no direct
interaction with the public. Hammond said all of McAlister’s past work would be
precluded under this hypothetical, but such a person could perform jobs as a
housekeeper, hand washer or hand presser. (Tr. 53-55).
The ALJ then asked Hammond to consider how many episodes of rightsided shaking, lasting 10 minutes and followed by disorientation, the same person
could have and still have the jobs identified by Hammond. Hammond testified that
in his opinion, a person with episodes like that would not be able to maintain
employment. (Tr. 55).
In consideration of McAlister’s migraines, the ALJ then asked Hammond
how often that hypothetical worker could be absent and still do those jobs.
Hammond testified that such a worker could be absent no more than 1.5 days per
month after a probationary period of ninety days. During the 90-day probationary
period, such a worker could not be absent at all. (Tr. 55).
Next, the ALJ asked Hammond how often such a worker could have an oral
altercation with a supervisor or co-worker and still do the job. Hammond testified
that if a person gets into an oral altercation twice in the same week with a
supervisor, he could not maintain the job. He testified that such a person could
likely have four or five altercations with the same co-worker in a month before
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“anything drastic” would happen, but if the altercations were with multiple coworkers he could likely not maintain a job after three or four altercations in one
month. Hammond testified that a worker would likely be terminated after one
physical altercation with a supervisor or after two physical altercations with a coworker. (Tr. 55-57).
During Hammond’s testimony, before McAlister’s attorney began his
examination, the ALJ noted that he was aware of Goldman’s medical source
statement and that Goldman had “basically checked off all markeds and extremes.”
The ALJ stated that Goldman is not qualified to express whether a listing is met,
but “what he’s indicating is in effect, listing all of the severity, and there’s no point
in posing that to the VE. The real question is whether his treatment notes support
it.” (Tr. 57).
During his examination by McAlister’s attorney, Hammond expressed that
he was not entirely sure what a “one and two step assembly” job would be. He
noted that the Dictionary of Occupational Titles talks about one, two and three step
assembly operations, but it does not provide any guidelines as to what those might
be. (Tr. 57-59).
Standard for Determining Disability under the Social Security Act
Social security regulations define disability as the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
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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. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20
C.F.R. § 416.905(a).
Determining whether a claimant is disabled requires the Commissioner to
evaluate the claim based on a five-step procedure. 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).
First, the Commissioner must decide whether the claimant is engaging in
substantial gainful activity. If so, he is not disabled.
Second, the Commissioner determines if the claimant has a severe
impairment that significantly limits the claimant's physical or mental ability to do
basic work activities. If the impairment is not severe, the claimant is not disabled.
Third, if the claimant has a severe impairment, the Commissioner evaluates
whether it meets or exceeds a listed impairment found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1, the
Commissioner will find the claimant disabled.
Fourth, if the claimant has a severe impairment and the Commissioner
cannot make a decision based on the claimant's current work activity or on medical
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facts alone, the Commissioner determines whether the claimant can perform past
relevant work. If the claimant can perform past relevant work, he is not disabled.
Fifth, if the claimant cannot perform past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, he is declared disabled. 20 C.F.R. § 404.1520; § 416.920.
Evaluation of Mental Impairments
The Commissioner has supplemented the familiar five-step sequential
process for evaluating a claimant's eligibility for benefits with additional
regulations dealing specifically with mental impairments. 20 C.F.R. § 920a. The
procedure requires an ALJ to determine the degree of functional limitation
resulting from a mental impairment. The ALJ considers limitation of function in
four capacities deemed essential to work. 20 C.F.R. § 416.920a(c)(2). These
capacities are: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence or pace; and (4) deterioration or decompensation in
work or work-like settings. 20 C.F.R. § 416.920a(c)(3). After considering these
areas of function, the ALJ rates limitations in the first three areas as either: none;
mild; moderate; marked; or extreme. The degree of limitation with regard to
episodes of decompensation is determined by application of a four-point scale:
none; one or two; three; or four or more. See 20 C.F.R. § 416.920a(c)(4).
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After rating the degree of functional loss, the ALJ is to determine the
severity of the mental impairments with reference to the ratings. 20 C.F.R. §
416.920a(d). If the mental impairment is severe, then the ALJ must determine
whether it meets or equals a listed mental disorder. Id. This is done by comparing
the presence of medical conclusions and the rating of functional limitation to the
criteria of the appropriate listed mental disorders. Id. If the claimant has a severe
impairment, but the impairment neither meets nor equals the listing, then the ALJ
is to do a residual functional capacity assessment. Id.
The ALJ’s Decision
Applying the five-step sequential evaluation, the ALJ first determined that
McAlister had not engaged in substantial gainful activity since the date she applied
for SSI benefits, February 16, 2011.
At step two, the ALJ found that McAlister had severe impairments of seizure
disorder, migraine headaches, bipolar disorder, Post-Traumatic Stress Disorder
(PTSD), learning disorder, and borderline intellectual functioning.
At step three, the ALJ determined that McAlister does not have an
impairment or combination of impairments that meets a listing. The ALJ found
that none of her mental impairments singly or in combination meets or medically
equals the criteria of listings 12.04, 12.05, or 12.06. In making this finding, the
ALJ considered whether the “paragraph B” criteria of the listings (“paragraph D”
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of listing 12.05) were satisfied. To satisfy the paragraph B criteria the mental
impairment must result in at least two of the following: 1) marked restriction of
activities of daily living; 2) marked difficulties in maintaining social functioning;
3) marked difficulties in maintaining concentration, persistence or pace or 4)
repeated episodes of decompensation, each of extended duration.
The ALJ concluded that because McAlister has a driver’s license, drives to
appointments, makes and keeps medical care appointments, needs no assistance
with budgeting, performs her own self care and some housework, and spends her
days playing the computer and taking walks with her boyfriend, she has only mild
impairment in activities of daily living.
He concluded that she is moderately limited in social functioning. In
support of this, he noted that she has been engaged for two years and has a
wedding date set. He noted her testimony that she gets along well with her fiancé
and has reported that she has a lot of friends. He observed that there is no evidence
past jobs ended due to difficulty getting along with people.
Finally in the area of concentration, persistence or pace, the ALJ found
McAlister is moderately limited in concentration only, but that she can still
concentrate well enough to do simple routine tasks with no limits in persistence or
pace. He noted that she does not have mental retardation, that her testimony
indicated school ended in 8th grade due to her behavior, not deficiencies in
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cognitive functioning. He noted that she has worked in the past and there is no
evidence that the jobs ended due to inability to understand, remember, and carry
out instructions. Furthermore, at a November 2011 psychosocial assessment, she
reported enjoying crosswords, playing on the computer and reading, none of which
is consistent with mental retardation.
Next, the ALJ found McAlister has the residual functional capacity to
perform light work as defined in 20 CFR § 416.967(b), except that she is unable to
climb ladders, ropes, and scaffolds and she is limited to only occasional balancing,
stooping, kneeling, crouching, and crawling. She must avoid dangerous
unprotected heights and dangerous moving machinery. Mentally, she is limited to
performing simple routine tasks that can be performed independently, that involve
working primarily with things rather than other people and involve no direct
interaction with the general public. Any social interaction with co-workers and
supervisors must be superficial, involving no negotiation, arbitration, mediation,
confrontation, or supervision of others.
In fashioning McAlister’s RFC, the ALJ determined that while her
impairments could be expected to produce McAlister’s alleged symptoms, the
alleged intensity, persistence, duration, and impact on functioning were not
credible or consistent with the totality of the evidence. To the degree he found
McAlister’s statements credible, he noted they were reflected in his RFC.
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In his review of the evidence, the ALJ gave little weight to the consultative
examination by Dr. Frank Froman. He noted that Froman reported McAlister
presented as slightly anxious and with the stare of one who was slightly schizoidal,
that questions had to be presented concretely to her and frequently clarified. The
ALJ found Froman’s conclusions were inconsistent with other evidence in the
record and with McAlister’s presentation and behavior at the hearing.
He also determined Froman’s global assessment of functioning (GAF) of 50
was unsupported by the evidence and gave it little weight. In doing so, the ALJ
noted that a that McAlister ended school in 8th grade due to her behavior not
deficient cognitive functioning, that McAlister has a driver’s license and drives
herself alone to appointments, that she makes and keeps appointments for medical
care, does crossword puzzles, uses a computer, reads, denies needing assistance
with budgeting (Tr. 334)), and was never identified to have mental retardation by
her school district. Furthermore there is no evidence that her jobs ended due to
inability understand, remember, and carry out instructions.
The ALJ also gave little weight to Dr. David Goldman’s GAF of 45 for the
same reasons he cited in support of his determination to give Froman’s GAF little
weight. Additionally, he noted that at the time of Goldman’s GAF determination,
McAlister was not on medication, and mental status examinations from late
January and late March 2012 were “completely normal.”
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The ALJ considered Goldman’s medical source statement and gave it less
than controlling weight due to its inconsistencies with Goldman’s other findings as
well as other evidence in the record. The ALJ found that McAlister frequently
sought treatment for physical symptoms during the relevant period and treating and
attending physicians seldom mentioned mental health symptoms or signs. He
noted that Goldman’s opinion that McAlister is impaired in her ability to interact
appropriately with other people is inconsistent with her testimony that she has a lot
of friends and a longstanding history of a stable relationship with her fiancé and
“that she has a good relationship with her children that were removed by DFS.”
He found that her testimony and lack of documentation by treating physicians
contradicted McAlister’s testimony that she has one or two bad days a week when
she fights with others and cries for no reason. He also noted he accounted for
stress issues and conflicts with others by limiting his RFC to tasks that can be
performed independently and jobs working primarily with things rather than
Finally, the ALJ found that other factors were also inconsistent with the
severity of the limitations McAlister alleged; for instance, her doctors had made
very few changes to her medications, suggesting that they were effective at
controlling her mental and seizure issues, and the record indicated that McAlister
had not taken her medications regularly. The third party function report completed
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by McAlister’s fiancé was consistent with a degree of functioning less severe than
what she claimed. Her fiancé indicated McAlister could prepare meals, perform
household chores, shop in stores, communicate with friends on the computer, and
visit family and friends. The ALJ found that to the extent her fiancé noted that she
gets distracted easily and does not get along well with others, this was inconsistent
with the evidence previously discussed. He determined there was no indication in
McAlister’s work history that she was unable to perform work due to an inability
to follow instructions.
At step four, the ALJ found that the demands of McAlister’s previous jobs
exceed her RFC, and she is unable to perform past relevant work.
Finally, at step five the ALJ relied on the vocational expert’s testimony to
find that, given McAlister’s RFC, age, education, and work experience, she is
capable of making a successful adjustment to work that exists in significant
numbers in the national economy.
Standard of Review
This court’s role on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2003). “Substantial evidence” is less than a
preponderance but enough for a reasonable mind to find adequate support for the
ALJ's conclusion. Id. When substantial evidence exists to support the
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Commissioner's decision, a court may not reverse simply because evidence also
supports a contrary conclusion, Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir.
2005), or because the court would have weighed the evidence differently.
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
To determine whether substantial evidence supports the decision, the court
must review the administrative record as a whole and consider:
(1) the credibility findings made by the ALJ;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff's subjective complaints relating to exertional and
(5) any corroboration by third parties of the plaintiff's impairments; and
(6) the testimony of vocational experts, when required, which is based upon
a proper hypothetical question.
Stewart v. Sec'y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir. 1992).
McAlister alleges the ALJ erred by (1) not according controlling weight to
the opinion of plaintiff’s treating physician, Dr. Goldman; (2) finding that
plaintiff’s mental impairments do not meet a listing of impairment under sections
12.04 or 12.06; and (3) making a patently erroneous credibility determination.
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Dr. Goldman’s Opinion Should Not Be Accorded Controlling Weight
McAlister argues that Goldman’s Medical Source Statement as to the
severity of her impairments should have been accorded controlling weight in
determining her RFC. The regulations require that a treating source’s opinion be
given controlling weight if the opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the case record.” 20 C.F.R. § 416.927(c)(2). However,
“[a] treating physician's opinion does not automatically control, since the record
must be evaluated as a whole.” Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir.
2011). An ALJ may discount or disregard the opinion of a treating physician
where other medical assessments are supported by better medical evidence, or
where the treating physician renders inconsistent opinions that undermine his
credibility. Id. at 897-98.
Dr. Goldman’s Medical Source Statement indicates that McAlister has
marked or extreme limitations in her ability to process instructions and make
judgments on work-related decisions due to her limited intellectual function and
inability to understand and retain information. It also indicates that McAlister has
marked or extreme limitations in her ability to interact appropriately with the
public, co-workers, and supervisors due to extreme anxiety she experiences in
being with others and her difficulty in utilizing healthy coping skills.
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The ALJ’s RFC makes it clear he accorded it at least some weight, as the
RFC accounts for the limitations noted in Dr. Goldman’s statement by providing
[m]entally [McAlister] is limited to performing simple routine tasks
that can be performed independently, that involve working primarily
with things rather than with other people, and that involve no direct
interaction with the general public. … any interaction with coworkers an supervisors must be superficial.
In addressing Dr. Goldman’s Medical Source Statement, the ALJ did not
accord it controlling weight because he found it to be “inconsistent with the
rationale and findings” of Dr. Goldman’s other opinions as well as other evidence
in the record. I conclude that the ALJ’s decision not to give Dr. Goldman’s
opinion controlling weight is supported by substantial evidence in the record as a
whole. First, as the ALJ notes, Dr. Goldman’s mental status examination reports
of McAlister in late January and late March suggest that she is normal and doing
well. (Tr. 339-341). In those “progress notes” he indicates that her appearance,
behavior, activity level, orientation, affect, judgment, cognition and impulse
control are normal. Under the section marked aggression, he has checked
“absent.” And in the March report he notes that during their appointment
McAlister stated “I’m doing good.” These reports are inconsistent with Dr.
Goldman’s Medical Source Statement, which indicates that McAlister’s anxiety
levels are so high she would have difficulty functioning around other people.
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Dr. Goldman also completed a more in-depth written assessment of
McAlister after their initial meeting in January 2012. The assessment notes that
McAlister has a low GAF score and that she has reported having problems with
concentration, but it states nothing about McAlister’s level of social anxiety or any
difficulty she has in processing instructions. She could spell “world” backwards
correctly, and she could correctly recall three words she was given five minutes
previously (and could do so in the same order that they were originally presented).
Like the progress notes, this initial assessment appears to depict McAlister’s
impairments as having a more mild level of severity, which is inconsistent with the
extreme level of severity asserted by Dr. Goldman in his Medical Source
The above-mentioned four reports (the initial assessment, two “progress
note” reports, and the Medical Source Statement) are the only direct
documentation from Dr. Goldman in the record. I conclude that the
inconsistencies between the Medical Source Statement and Dr. Goldman’s other
assessments are sufficient to justify the ALJ’s decision to discount Dr. Goldman’s
Medical Source Statement. See Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir.
2000) (“it is proper for an ALJ to accord a treating physician's opinion less
deference when the treating physician offers an additional assessment that
undermines the reliability of the opinion relied upon by the claimant”).
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In his opinion, the ALJ also cited other evidence in the record as a whole
that he felt was inconsistent with Dr. Goldman’s opinions and rendered Dr.
Goldman’s opinion non-controlling. See 20 C.F.R. § 416.927(c)(2). Because I
conclude that the previously discussed inconsistencies in Dr. Goldman’s own
assessments are sufficient to support the ALJ’s decision not to accord Dr.
Goldman’s opinion controlling weight, I will not address other evidence in the
record. See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (the ALJ’s first
reason for discounting the treating doctor’s opinion was sufficient, and therefore
the court need not comment on the ALJ’s second reason).
McAlister’s Mental Impairments Do Not Meeting a Listing
McAlister next contends that the ALJ erred in finding that her mental
impairments do not meet the requirements of Listing § 12.04 and § 12.06 of 20
C.F.R. pt. 404, supt. P, app. 1. For purposes of the impairments indicated in both §
12.04 and § 12.06, the required level of severity for these disorders is met,
indicating the presence of a disability, when the requirements in both sections A
and B are satisfied, or when the requirements in section C are satisfied. See 20
C.F.R. Part 404, Subpt. P, App. 1, §§ 12.04, 12.06. Section B of both Listings
requires that a claimant’s impairment result in at least two of the following:
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
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Marked difficulties in maintaining concentration, persistence or pace;
Repeated episodes of decompensation each of extended duration.
The ALJ opined that because McAlister’s impairments did not meet any of
the Section B or Section C criteria, her impairments did not meet the requirements
of Listings 12.04 or 12.06. McAlister appeals the ALJ’s conclusions as to the
Section B criteria. After careful consideration, I find that the ALJ’s conclusion is
supported by substantial evidence in the record as a whole.
First, the ALJ found McAlister suffered only a mild restriction of activities
of daily living. He noted that she has a driver’s license and drives alone to
appointments, makes and keeps appointments for medical care, denies needing
assistance with budgeting, reports spending her days playing on the computer and
walking in the park and is able to do her own self care and household chores. (Tr.
McAlister has argued that there is not substantial evidence in the record
showing she has a driver’s license, and I agree with her.1 However, I still find that
Both McAlister and her fiancé’s function reports state that she does not have a driver’s license,
but both reported that she drives. McAlister testified that she does not have a driver’s license,
and Dr. Froman’s report indicates she does not have a driver’s license. The only record
indicating she has a driver’s license is the psychosocial assessment done by the MDMH. (Tr.
332-37). Notably, the second such assessment done by the MDMH states that McAlister does
not have a driver’s license. (Tr. 861-65).
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the ALJ’s determination that McAlister has only mild restriction in the area of
daily living is supported by substantial evidence.
The regulations state that “[a]ctivities 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.” 20 C.F.R. § Pt. 404,
Subpt. P, App. 1. The ALJ is charged with assessing the quality of these activities
by their independence, appropriateness, effectiveness, and sustainability. Id.
Although there is evidence that McAlister has, on occasion, failed to keep
appointments with Dr. Hosley and the epileptologists in Columbia, Missouri, she
successfully attended her frequent appointments with Genia Perry at MTBH and
her appointments with Dr. Goldman.2 Just prior to the period of her alleged
disability, there is evidence that she regularly attended prenatal visits. Substantial
evidence also exists in the record to support the ALJ’s finding that McAlister
performs her own self-care and household chores. Both McAlister’s and her
fiancé’s function reports note this, as do the MDMH psychosocial assessments.
The ALJ did not specifically mention this evidence, but he did note generally that McAlister
successfully attends her appointments. The ALJ also stated in his opinion that he carefully
considered all the evidence, and notes reflecting McAlister’s attendance at meetings with Perry
and Goldman were part of the record before the ALJ. See Wildman v. Astrue, 596 F.3d 959, 966
(8th Cir. 2010) (although required to develop the record fully and fairly, an ALJ is not required
to discuss every piece of evidence submitted and failure to cite specific evidence does not
indicate that such evidence was not considered).
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The function reports also indicate McAlister is capable of paying bills, and the first
psychosocial assessment from the MDMH states McAlister claims to do her own
budgeting. McAlister also testified that she is now helping to care for her mother
in-law at her home. Finally, the state appointed psychological consultant, Dr.
Sullivan, reported that McAlister has only mild restrictions in her activities of daily
The ALJ next found that McAlister is only moderately limited in her social
functioning. He noted that she testified she has been engaged for two years, gets
along well with her fiancé and has reported having a lot of friends. He noted there
is no evidence that past jobs have ended due to difficulty getting along with other
“Social functioning includes the ability to get along with others, such as
family members, friends, neighbors, grocery clerks, landlords, or bus drivers.” 20
C.F.R. § Pt. 404, Subpt. P, App. 1. A claimant demonstrates impaired functioning
by showing, for example, “a history of altercations, evictions, firings, fear of
strangers, avoidance of interpersonal relationships, or social isolation.” Id.
I conclude that substantial evidence supports the ALJ’s opinion that
McAlister is only moderately limited in her social functioning. As noted by the
ALJ, McAlister has a seemingly supportive relationship with her fiancé. Both of
their function reports indicate she visits her family and goes shopping regularly.
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McAlister’s report also indicates she visits friends occasionally. Both of her
psychosocial assessments from the MDMH state that she reported having a lot of
friends and a close relationship with her fiancé’s sister and daughter. Although
McAlister wrote in her function report that she was fired from her McDonald’s job
for not getting along with others, at her hearing, she testified that she quit or lost
this job because her then-husband would not give her a ride to work. See
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (the possibility that two
inconsistent conclusions could reasonably be drawn from the same record does not
prevent one particular finding from being supported by substantial evidence).
McAlister’s and her fiancé’s function reports indicate that she has no problems
with supervisors or authority. The record does not present any significant history of
altercations with other people.
The ALJ found that McAlister did not have repeated episodes of
decompensation for extended periods, and McAlister does not challenge this
conclusion. She does challenge his finding, with regard to the third part of Section
B, that she is not markedly limited in concentration, persistence or pace. However,
in order to qualify for a listing, McAlister’s impairments must result in at least two
of the limitations listed in Section B. Because I find that substantial evidence on
the record as a whole supports the ALJ’s findings as to subparts 1, 2, and 4, it is
not necessary for me to review the ALJ’s conclusions as to subpart 3.
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The ALJ’s Credibility Determination Was Supported by Substantial
Evidence in the Record as a Whole
McAlister argues that the “specific reasons” given by the ALJ for
discounting her credibility are not supported by the evidence in the record as a
Under the framework set forth in Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984), an ALJ must consider the following factors when evaluating a
(1) the claimant's daily activities; (2) the duration, intensity, and
frequency of 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
Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011). The ALJ is not required to
explicitly discuss each Polaski factor. Id. “It is sufficient if he acknowledges and
considers those factors before discounting a claimant's subjective complaints.”
Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). Although an ALJ
cannot discount a claimant's subjective allegations solely on a lack of objective
medical evidence to support them, he may find a lack of credibility based on
inconsistencies in the evidence as a whole. See Ford v. Astrue, 518 F.3d 979, 982
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The “credibility of a claimant's subjective testimony is primarily for the ALJ
to decide, not the courts.” Moore v. Astrue, 572 F.3d 520, 524 (8th Cir.2009).
Consequently, courts should defer to the ALJ's credibility finding when the ALJ
explicitly discredits a claimant's testimony and gives good reason to do so.
Buckner, 646 F.3d at 558.
Here, the ALJ found that although McAlister’s impairments could
reasonably be expected to produce her alleged symptoms, the alleged intensity,
persistence, duration, and impact on functioning were not fully credible or
consistent with the totality of the evidence. In determining her credibility, the ALJ
properly discussed the Polaski factors, and his determination is supported by
substantial evidence in the record as a whole. To the extent the ALJ found
McAlister’s assertions credible, they are reflected in the ALJ’s RFC.
As to the alleged frequency of McAlister’s seizures, at the hearing McAlister
reported she has two per day, but the ALJ noted that Dr. Hosley’s medical records
indicate the frequency was unclear. McAlister reported to Hosley that her seizures
were occurring every 2-3 weeks but other records indicated she had gone a year
without having a seizure. Additionally, McAlister had recently reported to
Hannibal Regional Hospital that she had four seizures in one day.
The ALJ also relied on evidence from Dr. Hosley’s records that McAlister
has not always been compliant with her medication and was very noncompliant
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with her neurologic care. In her brief, McAlister has argued that her failure to take
medications is a symptom of one or more of her impairments, but Dr. Hosley’s
records do not attribute her failure to take medications directly to a mental or
physical health problem. And McAlister has pointed to no medical opinions or
evidence supporting this assertion other than her general diagnoses of bipolar
disorder. See Goff, 421 F.3d at 793 (without evidence that claimant’s failure to
take medication was due to financial reasons, her failure to take medication was
relevant to the credibility determination).
In finding that McAlister’s migraines were less severe than she alleged, the
ALJ opined that the record showed she had been seen in the ER for migraines in
May and July 2010, but that there was little evidence to suggest they occurred with
any regularity after this two-month period. He observed that a progress note from
the Community Health Center from October 26, 2010 indicated her mood, affect,
concentration, and memory were normal and no neurological abnormalities were
The ALJ also noted that physicians have made very few changes to
McAlister’s medication or dosage throughout the relevant period, indicating that,
when compliant, she is being successfully medicated. She has reported no side
effects from her current medications. The ALJ also opined that there was no
indication in McAlister’s work history that she was unable to perform work due to
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an inability to follow instructions. Her own testimony “attributed cessation of her
previous work to reasons other than her impairments.” See Ford, 518 F.3d at 982
(ALJ was entitled to give some weight to evidence that claimant quit her bank job
voluntarily—and not because of any impairment).3
Finally, in his credibility determination, the ALJ relied on McAlister’s
fiancé’s third party function report, in which he indicated her degree of functioning
is less severe than McAlister alleged at the hearing. Her fiancé reported that she is
able to prepare meals and perform household chores, such as cleaning and laundry.
He indicated that she shops in stores, communicates with friends on the computer
and visits family. See Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008)
(evidence of claimant’s general ability to care for himself and complete chores
when asked was proper part of credibility determination).
Based on the foregoing, I conclude that the ALJ properly discredited
McAlister’s allegations as to the intensity, persistence, duration, and impact on
functioning of her impairments, and there are good reasons for doing so. Therefore,
I defer to his finding of reduced credibility. See Perkins, 648 F.3d at 900 (“[i]f the
As already noted, in McAlister’s function report, she indicated she was fired from her job at McDonald’s due to an
inability to get along with a others, however, when she testified at the hearing, she stated her McDonald’s job ended
because her former husband refused to drive her to it. The ALJ was entitled to conclude McAlister’s testimony was
accurate. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (“if it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the agency's findings, we must affirm the
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ALJ discredits a claimant's credibility and gives a good reason for doing so, we
will defer to its judgment even if every factor is not discussed in depth.”).
For the aforementioned reasons, the ALJ’s determination that McAlister was
not disabled is supported by substantial evidence in the record as a whole and the
decision should therefore be upheld.
IT IS HEREBY ORDERED that the decision of the commissioner is
affirmed. A separate judgment in accordance with this Memorandum and Order is
entered this same date.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of March, 2015.
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