Miller v. Commissioner of Social Security

Filing 23

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the relief sought by Plaintiff in his Complaint and Brief in Support of Complaint (Docs. 1, 16) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 12/29/2015. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

MARK E. MILLER,

)
)
Plaintiff,
)
)
V.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 2:15CV02NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Mark E. Miller
(Plaintiff) for Supplemental Security Income (SSI), under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the
Complaint. (Doc. 16). Defendant has filed a brief in support of the Answer.
(Doc.19). The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 9).
I.
PROCEDURAL HISTORY
On December 20, 2011, Plaintiff filed an application for SSI alleging a
disability onset date of November 24, 2009. (Tr. 191-96). His application was
denied, and he requested a hearing before an Administrative Law Judge (ALJ).

(Tr. 125, 145). After a hearing, by decision, dated August 20, 2013, the ALJ found
Plaintiff not disabled. (Tr. 50-69). On December 5, 2014, the Appeals Council
denied Plaintiff’s request for review. (Tr. 1-3). As such, the ALJ’s decision stands
as the final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
2

250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s

3

RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
4

inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence

5

may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).

6

The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
When evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
7

and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s
complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See
id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show

8

that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to
include all of a plaintiff’s limitations, but only those which the ALJ finds credible.
See Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).

9

III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
At the time of the hearing, Plaintiff was forty-eight years old and weighed
240 pounds. (Tr. 81). Plaintiff testified that he had not had a driver’s license for
six or seven years because it was taken away after he received a driving while
intoxicated (DWI) conviction; that he completed the twelfth grade; that he could
“read pretty good”; that he left his last job because he could not perform it; that
people did not want to be around him because of his anger problems; that he
smoked about a package of cigarettes a day; and that his disabling conditions
included bi-polar disorder, depression, a bad left leg; wrist pain, short term
memory loss, difficulty sleeping, and breathing problems for which he used a
CPAP machine at night. (Tr. 82-85, 88-92, 97-98).

10

The ALJ found that Plaintiff had not engaged in substantial gainful activity
since December 20, 2011, his application date1; that he had the severe impairments
of posttraumatic stress disorder (PTSD), obsessive-compulsive disorder (OCD),
affective disorder, and bi-polar disorder; and that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a listed
impairment. The ALJ further found that Plaintiff had the following RFC: Plaintiff
could perform medium work except that he could only perform simple, routine,
repetitive work with occasional contact with the public, coworkers, and
supervisors; he could not engage in tasks at a production rate pace; and he had to
alternate between sitting, standing, and walking every forty-five minutes at will,
for a brief change, while continuing to work at the workstation.

The ALJ

additionally found that Plaintiff did not have any past relevant work; that, based on
Plaintiff’s age, education, work experience, and RFC, there were jobs existing in
significant numbers, in the national economy, which Plaintiff could perform; and
that, therefore, Plaintiff was not disabled.

Although Plaintiff alleged disability beginning November 2009, the ALJ
adjudicated his case beginning with the date of his December 2011 application
because SSI is not payable prior to the application date. (Tr. 59). See 20 C.F.R. §
416.335 (“When you file an application in the month that you meet all the other
requirements for eligibility, the earliest month for which we can pay you benefits is
the month following the month you filed the application.”). Plaintiff does not take
issue with the ALJ’s doing so.
1

11

Plaintiff contends that the ALJ’s decision is not based on substantial
evidence because: The ALJ failed to accord controlling weight to the opinion of
Lyle Clark, M.D., who was Plaintiff’s treating psychiatrist; the ALJ erred in
finding that Plaintiff’s mental impairments did not meet Listing 12.04 or 12.06;
and the ALJ’s RFC determination was not supported by the evidence. Upon
challenging the ALJ’s RFC determination, Plaintiff argues that the ALJ should
have found that his RFC was more restrictive than the RFC which the ALJ
assigned to him.

For the following reasons, the court finds that Plaintiff’s

arguments without merit and that the ALJ’s decision is based on substantial
evidence and is consistent with the Regulations and case law.
A.

Plaintiff’s Credibility:
The court will first address the ALJ’s credibility findings as Plaintiff’s

credibility is relevant to other factors, including the weight given to opinions of
record. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The plaintiff]
fails to recognize that the ALJ's determination regarding her RFC was influenced
by his determination that her allegations were not credible.@) (citing Tellez v.
Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20 C.F.R. §§ 404.1545, 416.945
(2010). As set forth more fully above, the ALJ=s credibility findings should be
affirmed if they are supported by substantial evidence on the record as a whole; a
court cannot substitute its judgment for that of the ALJ. See Guilliams v. Barnhart,

12

393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at
882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).

AIf an ALJ explicitly discredits the claimant=s

testimony and gives good reason for doing so, [a court] will normally defer to the
13

ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the reasons offered by the ALJ in support of his credibility determination
are based on substantial evidence.
First, the ALJ considered that Plaintiff engaged in a “wide-range of daily
activities” and that his doing so was inconsistent with his allegations of total
disability. In particular, the ALJ considered that Plaintiff did not have difficulty
with personal care activities, and that he performed household repairs, mowed the
lawn, and took out the trash. (Tr. 65). The court further notes that Plaintiff
testified that he did some carpentry work such as installing trim and drywall,
although he had not done that for the prior seven years; that more recently he had
been paid to clean a garage; that he had no trouble when he went grocery shopping
with his girlfriend; and that he used a computer. (Tr. 100-101, 104-105). Further,
in a Function Report – Adult, dated September 27, 2010, Plaintiff said that he
“messed around in the yard,” fed his dogs, did household repairs and mowing,
shopped for food, watched television every day, and had no problems sitting,
talking, hearing, climbing stairs, seeing, using his hands, and getting along with
others. (Tr. 255-60). Plaintiff’s girlfriend reported, in a Function Report – Adult Third Party, that Plaintiff did dishes, took out the trash, and swept the floors, and

14

that Plaintiff did not have difficulty lifting, climbing stairs, kneeling, talking, using
his hands, following instructions, reaching, and seeing. (Tr. 292-97). On April 5,
2011, Plaintiff told Robert Parsonson, M.D., that he knew “how to shop and cook
but ‘[his girlfriend] [did] most of it.” He further stated: “I am not going to lose
any weight – it is not happ[en]ing. I am fat and lazy. I don’t give a damn. I try
not to think about it.” (Tr. 419). Also, Plaintiff’s doctor reported, on October 2,
2012, that Plaintiff said he had been “trying to work on getting loads of wood.”
(Tr. 610).
While the undersigned appreciates that a claimant need not be bedridden
before he can be determined to be disabled, a claimant’s daily activities can
nonetheless be seen as inconsistent with his subjective complaints of a disabling
impairment and may be considered in judging the credibility of complaints. See
McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (ALJ properly discounted
plaintiff’s credibility where, among other factors, plaintiff “was not unduly
restricted in his daily activities, which included the ability to perform some
cooking, tak[ing] care of his dogs, us[ing] a computer, driv[ing] with a neck brace,
and shop[ping] for groceries with the use of an electric cart”). See also Ponders v.
Colvin, 770 F.3d 1190 (8th Cir. 2014) (holding that substantial evidence supported
the ALJ’s denial of disability benefits in part because claimant “performs light
housework, washes dishes, cooks for her family, does laundry, can handle money

15

and pays bills, shops for groceries and clothing, watches television, drives a
vehicle, leaves her house alone, regularly attends church, and visits her family”);
Buckner v. Astrue, 646 F.3d 549, 555 (8th Cir. 2011) (finding plaintiff's depression
was not severe where plaintiff engaged in daily activities that were inconsistent
with his allegations); Roberson v. Astrue, 481 F.3d, 1020, 1025 (8th Cir. 2007)
(holding that the ALJ’s denial of benefits was supported based in part because
Plaintiff fixed meals, did housework, shopped for grocers, and visited friends).
Moreover, to the extent Plaintiff urges the court to reweigh the evidence regarding
Plaintiff’s daily activities and draw its own conclusion in this regard, it is not the
function of the court to do so. See Bates v. Chater, 54 F.3d 529, 531-32 (8th Cir.
1995) (“As we have stated many times, we do not reweigh the evidence presented
to the ALJ, and it is the statutory duty of the ALJ, in the first instance, to assess the
credibility of the claimant and other witnesses.”) (internal citations, punctuation,
and quotations omitted). In any case, Plaintiff’s daily activities were only one of
many factors considered by the ALJ when determining Plaintiff’s credibility. (Tr.
64-66).
Second, the ALJ considered that Plaintiff was non-compliant with prescribed
treatment. (Tr. 65). See Wildman v. Astrue, 596 F.3d 959, 964-65 (8th Cir. 2010)
(noncompliance is a basis for discrediting a claimant; when claimant was
compliant with dietary recommendations his pain was under good control). In this

16

regard, the court notes that an Annual Assessment, dated March 24, 2009,
completed by Community Support Specialist Ken Norman, states that Plaintiff
“failed to take his medications at times”; that Plaintiff said that “he liked the
medications his girlfriend was on better than his so he would just take hers”; and
that Plaintiff was “supposed to be on a[] 1800 calorie a day diet to lose weight,”
but that he “reported that he [did] not follow it.” (Tr. 590-91).
After seeing Plaintiff on March 28, 2011, for complaints of depression and a
“high level of anxiety,” Jonathan D. Colen, D.O., reported that Plaintiff described
having “heavy caffeine use,” which comprised of his drinking “greater than ten
cups of coffee a day.” Dr. Colen opined that it was difficult to determine whether
Plaintiff’s anxiety was “primary anxiety disorder or substance induced from
caffeine, which [was] quite possible.” When Dr. Colen recommended that Plaintiff
slowly reduce his caffeine intake, Plaintiff was not interested in doing so. (Tr.
470-71). Additionally, Dr. Colen reported that Plaintiff’s “[n]ot using the Bi-PAP
could be contributing to treatment resistant depression, anxiety, and extreme
irritability.” When Dr. Colen recommended that Plaintiff get a different mask for
his Bi-PAP, Plaintiff “appeared to be resistant.”2 (Tr. 475). When Dr. Colen

Bi-PAP “ stands for Bilevel Positive Airway Pressure, and is very similar in
function and design to a CPAP machine (continuous positive airway pressure).
Similar to a CPAP machine, a BiPAP machine is a non-invasive form of therapy
for patients suffering from sleep apnea. Both machine types deliver pressurized air
through a mask to the patient's airways. The air pressure keeps the throat muscles
2

17

recommended that Plaintiff discontinue alcohol, Plaintiff responded that he did not
think his occasional use was a problem. Dr. Colen further reported that he was
concerned with Plaintiff’s asking for Xanax “which is about as close as you can get
to alcohol in a pill in terms of its effects.” Finally, Dr. Colen recommended that
Plaintiff continue with another doctor because “he [was] not wanting to follow the
treatment recommendations that” Dr. Colen had given him. (Tr. 476).
Also, in regard to Plaintiff’s failure to follow medical advice, Dr. Parsonson
reported, on January 17, 2012, that although Plaintiff complained of insomnia, he
declined a sleep study; he also declined “PSR groups.” (Tr. 619). On April 4,
2012, Dr. Parsonson reported that Plaintiff was non-compliant “again” with his
medication. (Tr. 617).
On August 14, 2012, Dr. Gwan-Nulla reported that a nerve blockage
procedure was recommended for Plaintiff’s leg pain, but that Plaintiff refused to
have the procedure. (Tr. 728). On September 4, 2012, Dr. Clark, a psychiatrist,
reported it was “difficult to treat” Plaintiff and that “alcohol and/or substance
abuse” were a “significant contribution to [Plaintiff’s] problems.” (Tr. 567). On
October 2, 2012, Dr. Clark reported that Plaintiff “admitted that he was drinking a
significant amount of [c]affeine and was asked to reduce this.” (Tr. 610). On
from collapsing and reducing obstructions by acting as a splint. Both CPAP and
BiPAP machines allow patients to breathe easily and regularly throughout the
night.” http://www.alaskasleep.com/blog/what-is-bipap-therapy-machine-bilevelpositive-airway-pressure (last visited 10/16/2015).
18

September 14, 2013, Dr. Clark reported that Plaintiff was not compliant with his
Bi-PAP because he found it “annoying” and that Plaintiff “admit[ted] that he [was]
not taking his medication regularly.” (Tr. 699). The record also reflects that
Plaintiff was repeatedly advised to stop smoking and lose weight, but that he did
not follow this advice. (Tr. 672, 677, 681, 685).
Third, the ALJ considered that Plaintiff was treated with prescription
medication and regular therapy and that he reported, on occasion, that his
medications were effective. (Tr. 65). Conditions which can be controlled by
treatment are not disabling. See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir.
2012) (quoting Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010)); Davidson v.
Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813
(8th Cir. 2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that
if an impairment can be controlled by treatment, it cannot be considered disabling).
In this regard, it was reported, on July 12, 2012, that, with multiple
medications, Plaintiff’s blood pressure was “well controlled, even on the low side.”
(Tr. 678). Dr. Clark reported, on October 2, 2012, that he declined to increase
Plaintiff’s medication, when Plaintiff asked that he do so, and that Plaintiff said he
had been doing “fair to midline.” (Tr. 610). On April 10, 2012, Plaintiff told Dr.
Clark that he had been “doing a little better since he increased [his] medication.”
(Tr. 605). In June 2013, Plaintiff told Dr. Clark that his sleep had improved

19

“somewhat” with the increase in his medication, and that he did not have side
effects from medication. (Tr. 701). See Depover v. Barnhart, 349 F.3d 563, 566
(8th Cir. 2003) (AWe [] think that it was reasonable for the ALJ to consider the fact
that no medical records during this time period mention [the claimant=s] having
side effects from any medication.@).
To the extent Plaintiff argues that the ALJ did not consider his testimony
that he had side effects from medication (Doc. 16 at 22-23), in particular Plaintiff’s
testimony that his medication made him dizzy and tired (Tr. 87), there is no
indication that the ALJ actually failed to consider Plaintiff’s testimony in this
regard. See Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (AThe fact that
the ALJ did not elaborate on this conclusion does not require reversal, because the
record supports her overall conclusion.@) (citations omitted); Wheeler v. Apfel, 224
F.3d 891, 896 n.3 (8th Cir. 2000) (citing Black v. Apfel, 143 F.3d 383, 386 (8th
Cir. 1998) (holding that an ALJ is not required to discuss every piece of evidence
submitted and that an AALJ=s failure to cite specific evidence does not indicate that
such evidence was not considered@).
Moreover, even assuming that the ALJ failed to consider Plaintiff’s
testimony about side effects he had from medication, given that the ALJ found
Plaintiff not fully credible, there is no indication that the ALJ would have decided
differently had she considered such testimony. See Welch v. Colvin, 765 F.3d
20

926, 929 (8th Cir. 2014) (ALJ’s failure to explicitly address applicable SSR 96-9p
was an arguable deficiency in opinion writing that had no practical effect on
decision because ALJ found Plaintiff’s limitations had no more than a slight
impact on claimant’s ability to perform full range of sedentary work; therefore, that
was not a sufficient reason to set aside the ALJ’s decision); Van Vickle v. Astrue,
539 F.3d 825, 830 (8th Cir. 2008) (“There is no indication that the ALJ would have
decided differently had he read the hand-written notation to say ‘walk’ rather than
‘work’ and any error by the ALJ was therefore harmless.”).
Fourth, the ALJ considered that, during the relevant period, Plaintiff never
required emergency department intervention or in-patient care for his alleged
psychiatric impairments.

(Tr. 65).

Conservative treatment is consistent with

discrediting a claimant=s allegation of disabling pain. Kamann v. Colvin, 721 F.3d
945, 950-51 (8th Cir. 2012) (noting that the ALJ properly considered that the
claimant was seen “relatively infrequently for his impairments despite his
allegations of disabling symptoms”); Casey v. Astrue, 503 F.3d 687, 693 (8th Cir.
2007) (noting that the claimant sought treatment “far less frequently than one
would expect based on the [symptoms] that [he] alleged”); Black v. Apfel, 143
F.3d 383, 386 (8th Cir. 1998).
Fifth, the ALJ considered that the objective evidence did not support
Plaintiff’s allegations regarding the severity of his mental impairments. (Tr. 64).

21

See Social Security Ruling (SSR) 06-7p(4), 1996 WL 374186, at *1 (July 2, 1996)
(“In determining the credibility of the individual's statements, the adjudicator must
consider the entire case record, including the objective medical evidence,”
although disability determination “cannot be made solely on the basis of objective
medical evidence.”). Indeed, a claimant’s “symptoms, including pain, will be
determined to diminish [his] capacity for basic work activities to the extent that
[his] alleged functional limitations and restrictions due to symptoms can
reasonably be accepted as consistent with the objective medical evidence and other
evidence in the case record.” Id. at *2.
In this regard, pursuant to a March 28, 2011 mental status examination, Dr.
Colen reported that Plaintiff’s form of thought was logical and goal-directed; that
he had “absolutely no flight of ideas or circumstantiality, no tangentiality”; that he
had no racing of thoughts, except for “worries at times”; that his affect was mildly
flat; that no anxiety was noted in Plaintiff’s “psychomotor activity, behavior and/or
affect during [his] appointment”; that Plaintiff was alert and oriented; that he had
no gross deficit in immediate, recent, or remote memory; that he had no gross
deficit in the ability to maintain attention or concentration, in his ability to
maintain attention, or in his general fund of knowledge; that Plaintiff’s intelligence
appeared to be in the normal range by vocabulary; and, other than his insight into

22

his problems with alcohol and caffeine and his not using his Bi-PAP, Plaintiff’s
insight and judgment appeared to be intact. (Tr. 474).
On January 11, 2012, Dr. Parsonson reported that Plaintiff was groomed,
cooperative, and had a depressed mood, monotone speech, and no homicidal or
suicidal ideas. (Tr. 620). On January 17, 2012, Dr. Parsonson reported that
Plaintiff was groomed and cooperative “+1,” had no suicidal or homicidal ideas,
and had poor insight, impulse control, and judgment. (Tr. 619). On January 24,
2012, Dr. Parsonson reported that Plaintiff was groomed and cooperative and had a
cooperative attitude, normal speech, organized thoughts, fair insight, and poor
impulse control and judgment.

(Tr. 618).

On April 4, 2012, Dr. Parsonson

reported that Plaintiff was groomed; that his affect was appropriate; that his speech
was normal; that he had no suicidal or homicidal ideas; that his insight was fair;
and that his impulse control and judgment were poor. (Tr. 617)
On June 13, 2012, pursuant to a mental status examination, Dr. Clark
reported that: Plaintiff was oriented; his dress was appropriate; he was pleasant
and cooperative; his answers were to the point; his speech was within normal
limits; his intellect appeared to be average to below average; his memory was fair;
Plaintiff’s thoughts demonstrated logical associations; his mood appeared neutral;
his affect was appropriate; he denied assaultive and homicidal ideation; and his
insight and judgment were adequate. (Tr. 615). On July 11, 2012, Dr. Clark

23

reported that: Plaintiff was oriented; his demeanor was pleasant and cooperative;
his thoughts demonstrated logical associations; his answers were to the point; his
mood was mildly depressed; his affect was appropriate; and his insight and
judgment were adequate for the situation. (Tr. 612). Dr. Clark reported, on
September 4, October 2, and December 18, 2012, and February 19, 2013, that:
Plaintiff was oriented; he was pleasant and cooperative; his thoughts were logical;
his answers were to the point; his affect was appropriate; and his insight and
judgment were adequate for the situation. (Tr. 608-11).
On April 10, 2013, Dr. Clark reported that Plaintiff was oriented; that he was
pleasant and cooperative; that his insight, judgment, and hygiene were adequate;
that he was pleasant and cooperative; that his answers were to the point of the
question; that his thoughts demonstrated normal flow and rate with intact
associations; and that he denied assaultive and homicidal ideation. (Tr. 606). Dr.
Clark then reported, in June and May 2013, that Plaintiff was alert and oriented;
that he was pleasant and cooperative; that his thoughts demonstrated normal rate
and flow with intact associations; that his answers were to the point; that his affect
was appropriate; and that his insight and judgment were adequate. (Tr. 701).
In regard to Plaintiff’s alleged physical impairments, Dr. Clark reported, in
June 2012, that Plaintiff had no abnormal movements. (Tr. 615). In July 2012,
Meesha Gwan-Nulla, M.D., reported that, on physical examination, Plaintiff was in

24

no acute respiratory distress; that he had regular heart rate and rhythm; that he had
no clubbing, cyanosis or edema of the extremities; that his gait and deep tendon
reflexes were normal; and that his hypertension was stable and on the low side.
(Tr. 678). In May and June 2013, Dr. Clark reported that Plaintiff’s “movements
showed no problems with tone, gait, or station.” (Tr. 701-702).
Sixth, the court notes that Plaintiff’s allegations were inconsistent with what
he told doctors.

See Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir. 2006)

(contradictions between a claimant=s sworn testimony and what he actually told
physicians weighs against the claimant=s credibility).

Indeed, in June 2012,

Plaintiff told Dr. Clark that he had no delusions or suicidal ideation. (Tr. 615). In
April 2013, Plaintiff told Dr. Clark that he had only occasional auditory
hallucinations and no delusions and that he had mild depressive ideation. Plaintiff
also reported that his sleep had improved. (Tr. 606). In May and June 2013,
Plaintiff told Dr. Clark that he had less depressive ideation and denied suicidal
ideation. In May 2013, Plaintiff told Dr. Clark that he had been doing “fairly
well”; that he was getting along better with people; and that his mood had been
more stable in the prior month. (Tr. 700-701).
Seventh, the ALJ considered that there was “little evidence that [Plaintiff]
experienced any significant exacerbations [of his mental conditions] during the
relevant period.” (Tr. 65).

25

Eighth, the ALJ considered Plaintiff’s work history, including that he had a
“very sporadic work history consisting of low wages.”

The ALJ stated that

Plaintiff’s work record drew into question Plaintiff’s motivation to work and his
credibility as a witness. The ALJ noted that, with his history of low wages, it was
possible that Plaintiff would receive more in SSI than he earned from employment
during the fifteen of his last eighteen years of employment. (Tr. 66). Indeed,
Plaintiff earned nothing in 2001, $8,857.09 in 2002, nothing in 2003, $30,197.07 in
2004, $32,331.04 in 2005, $5,530.40 in 2006, $1,306.51 in 2007, and $473.81 in
2008. (Tr. 202, 205). A long and continuous past work record with no evidence of
malingering is a factor supporting credibility of assertions of disabling
impairments. See Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980). For the
same reason, an ALJ may discount a claimant=s credibility based upon his poor
work record. See Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (holding
that the ALJ did not err in evaluating claimant’s credibility in finding that his
“sporadic work history prior to his alleged disability date” indicated that he was
not strongly motivated to engage in meaningful productive activity and that this
weighed against claimant’s credibility regarding his alleged reasons for not
working); Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005) (ALJ may properly
consider claimant had not worked for several years before filing SSI application);
Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004) (ALJ properly found

26

claimant not credible due in part to his sporadic work record reflecting relatively
low earnings and multiple years with no reported earnings).
Ninth, the court notes that Dr. Clark reported, in June 2012, that Plaintiff’s
current stressors included occupational problems including problems finding work
and economic problems such as paying bills and child support. (Tr. 615). In April
2013, Plaintiff’s primary stressors were having a “step-son and his wife move in,”
occupational problems including his being unable to maintain employment, and
economic problems including his being unable to pay his utility bills. (Tr. 605).
Situational depression is not disabling. See Dunahoo v. Apfel, 241 F.3d 1033,
1039-40 (8th Cir. 2001) (holding that depression was situational and not disabling
because it was due to denial of food stamps and workers compensation and
because there was no evidence that it resulted in significant functional limitations);
Shipley v. Astrue, 2010 WL 1687077, at *12 (E.D. Mo. April 26, 2010)
(situational depression is not disabling).
In conclusion, the court finds that the ALJ’s credibility determination is
based on substantial evidence and consistent with the Regulations and case law.
B.

Opinion of Dr. Clark:
In a Medical Source Statement of Ability to do Work-Related Activities –

Mental, dated September 4, 2012, Dr. Clark opined as follows: Plaintiff was
moderately limited in regard to understanding and remembering simple

27

instructions, carrying out simple instructions, and interacting appropriately with the
public, supervisors, and co-workers; Plaintiff was markedly limited in his ability to
make simple work-related decisions, understand, remember, and carry out complex
instructions, make judgments on complex work-related instructions, and respond
appropriately to usual work situations and changes in work settings; and Plaintiff
did not have any extreme limitations. Dr. Clark also opined that Plaintiff had
difficulty with changes, and that he seemed to be very confused with even small
changes. (Tr. 566-67). Plaintiff argues that the ALJ’s determination that only
partial weight should be given to Dr. Clark’s opinion is not based on substantial
evidence. (Doc. 16 at 9-18). For the following reasons, the court finds that the
ALJ gave proper weight to Dr. Clark’s opinion and that the ALJ’s decision, in this
regard, is based on substantial evidence.
First, the ALJ declined to give Dr. Clark’s opinion controlling weight
because the medical evidence as a whole did not fully support the level of Dr.
Clark’s opined limitations. (Tr. 66). Where a treating doctor’s opinion “is not
consistent with the objective medical evidence that relates to determining disabling
pain levels,” an ALJ need not give the treating doctor’s opinion controlling weight.
Wright v. Colvin, 789 F.3d 847, 853 (8th Cir. 2015) (citing Perkins v. Astrue, 648
F.3d 892, 897 (8th Cir. 2011) (“An ALJ may discount or even disregard the
opinion of a treating physician where other medical assessments are supported by

28

better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.”). See also
Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014) (finding ALJ properly
discounted treating physician’s opinion where it was inconsistent with treatment
records and objective medical evidence as a whole and was not supported by the
treating physician’s own physical examination of the claimant and objective test
results); Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (holding that if a
doctor=s opinion is inconsistent with or contrary to the medical evidence as a
whole, the ALJ can accord it less weight).
Second, the ALJ considered that portions of Dr. Clark’s opinion were
consistent with the medical evidence, and, as such, the ALJ accommodated these
portions of Dr. Clark’s opinion in Plaintiff’s RFC. Specifically, the ALJ accepted
the moderate limitations found by Dr. Clark and incorporated those limitations in
Plaintiff’s RFC, as the ALJ limited Plaintiff to simple, routine, repetitive work that
did not involve a production-rate pace. (Tr. 61, 63). See Choate v. Barnhart, 457
F.3d 865, 869-70 (8th Cir. 2006) (holding that the limitations imposed by the ALJ
as reflected in the claimant=s RFC demonstrate that the ALJ gave some credit to the
opinions of the treating physicians); Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005) (AIn assessing [the claimant=s] RFC, the ALJ determined that [the claimant]
could sit for a total of six hours and stand for a total of two hours, but was limited

29

to sedentary work. This in itself is a significant limitation, which reveals that the
ALJ did give some credit to [the treating doctor=s] medical opinions.@).
Third, the court notes that the marked limitations imposed by Dr. Clark are
inconsistent with his own treatment notes. See Leckenby v. Astrue, 487 F.3d 626,
632 (8th Cir. 2007) (holding that a treating physician=s opinion does not
automatically control or obviate the need to evaluate the record as whole and
upholding the ALJ=s decision to discount the treating physician=s medical-source
statement where limitations were never mentioned in numerous treatment records
or supported by any explanation); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir.
2006) (holding that where a treating physician=s notes are inconsistent with his or
her RFC assessment, controlling weight is not given to the RFC assessment). In
particular, although Dr. Clark opined that Plaintiff had marked limitations in regard
to his making judgments and work-related decisions and in his ability to respond
appropriately to work situations, as discussed above in regard to Plaintiff’s
credibility, Dr. Clark frequently reported that Plaintiff had appropriate dress,
normal speech, average intellect, intact memory, logical thoughts, a pleasant and
cooperative attitude, and no violent thoughts.

(Tr. 64, 605, 609-12, 700-01).

Notably, courts have held that normal findings pursuant to a mental status
examination are a sufficient basis upon which an ALJ may discredit a treating
doctor’s opinion that a claimant is disabled. See, e.g., Mitchell v. Colvin, 2014

30

WL 65386, at *28 (E.D. Mo. Jan. 8, 2014) (unpublished) (referring to “normal
mental status examinations” demonstrating “only mild to moderate symptoms” as
substantial evidence to support ALJ’s RFC determination); Boling v. Astrue, 2012
WL 1898783, at *4 (W.D. Mo. May 23, 2012) (unpublished) (referring to normal
mental status examination as substantial evidence supporting ALJ’s decision to
discount treating physician’s opinion). Moreover, Dr. Clark frequently reported
that Plaintiff was non-compliant with treatment recommendations. (Tr. 610, 672,
677, 681, 699, 728).
Fourth, the marked limitations imposed by Dr. Clark were inconsistent with
the findings of other medical sources of record. Tilley v. Astrue, 580 F.3d 675,
679 (8th Cir. 2009) (“A treating physician's opinion is given controlling weight if it
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [a
claimant's] case record.”) (internal quotation and citation omitted). As discussed
above, Dr. Colen reported, pursuant to examination, that Plaintiff had no gross
deficits in regard to memory and the ability to maintain attention; that he had a
logical and goal-directed thought process; that he did not have flight of ideas; that
he was alert and oriented; and that his insight and judgment were intact with
exceptions regarding his alcohol use and Bi-PAP use. (Tr. 474). Also, when

31

Plaintiff was compliant with his medication, Dr. Parsonson reported that Plaintiff
was less depressed and slept well. (Tr. 618).
Fifth, to the extent Plaintiff argues that the ALJ erred in discounting the
Global Assessment of Functioning Score (GAF) of 403 which Dr. Clark assigned to
Plaintiff (Doc. 16 at 17-18), as considered by the ALJ, the Commissioner has
declined to endorse the GAF scale for use in Social Security disability programs
because of a lack of correlation between GAF scores and the severity of the mental
disorder listings. (Tr. 65). See Jones v. Astrue, 619 F.3d 963, 974-75 (8th Cir.
2010) (“[T]he Commissioner “has declined to endorse the [Global Assessment
Functioning] score for ‘use in the Social Security and [Supplemental Security
GAF is the clinician=s judgment of the individual=s overall level of functioning,
not including impairments due to physical or environmental limitations. See
Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, 30-32 (4th ed.
1994). Expressed in terms of degree of severity of symptoms or functional
impairment, GAF scores of 31 to 40 represent Asome impairment in reality testing
or communication or major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood,@ 41 to 50 represents Aserious,@
scores of 51 to 60 represent Amoderate,@ scores of 61 to 70 represent Amild,@ and
scores of 90 or higher represent absent or minimal symptoms of impairment. Id. at
32. See also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (A[A] GAF score
of 65 [or 70] . . . reflects >some mild symptoms (e.g. depressed mood or mild
insomnia) OR some difficulty in social, occupational, or school functioning . . . but
generally functioning pretty well, has some meaningful interpersonal
relationships.=@) (quoting Kohler v. Astrue, 546 F.3d 260, 263 (2d Cir. 2008)
(quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed. 2000) (alterations in original). See also Goff, 421 F.3d at
791, 793 (affirming where court held GAF of 58 was inconsistent with doctor’s
opinion that claimant suffered from extreme limitations; GAF scores of 58-60
supported ALJ’s limitation to simple, routine, repetitive work).
3

32

Income] disability programs,’ and has indicated that [GAF] scores have no ‘direct
correlation to the severity requirements of the mental disorders listings.’”) (quoting
Wind v. Barnhart, 133 Fed. Appx. 684, 692 n.5 (11th Cir. 2005) (quoting 65 Fed.
Reg. 50746, 50764-65 (Aug. 21, 2000)).
Indeed, on a form titled “Individual Treatment & Rehabilitation Plan,” dated
April 25, 2012, Dr. Clark assessed Plaintiff’s GAF as 44, indicating severe
symptoms. Also, pursuant to June 13, 2012 psychiatric evaluation, Dr. Clark
reported that Plaintiff had a GAF of 42, but he also reported, on this same date, that
Plaintiff was alert and oriented, dressed appropriately, had adequate hygiene, was
pleasant and cooperative, showed no obvious movement abnormalities, had speech
which was within normal limits, had answers which were to the point of the
question, had average to below average intellect, had fair memory and thoughts
which demonstrated logical associations, and had appropriate affect, neutral mood,
and adequate insight and judgment. Plaintiff also denied suicidal, assaultive, and
homicidal ideation. (Tr. 615). See Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir.
2014) (finding ALJ properly discounted treating physician’s opinion where it was
not supported by the treating physician’s own physical examination of the
claimant). On April 10, 2013, Dr. Clark stated that Plaintiff’s GAF was 43, despite
reporting, on that same date, that Plaintiff was alert and oriented; that his dress was
appropriate; that his hygiene was adequate; that Plaintiff was pleasant and

33

cooperative; and that he had normal speech; average to below average intellect, fair
memory, normal flow of thought and intact associations, appropriate affect, and
adequate insight and judgment. Also, Plaintiff denied suicidal, assaultive, and
homicidal ideation and his answers were to the point of the question. Significantly,
Dr. Clark noted, on this date, that Plaintiff admitted only mild depressive ideation,
occasional auditory hallucinations, and no delusions. (Tr. 606).
Fifth, to the extent Dr. Clark opined that Plaintiff had marked limitations, he
did so by making checkmarks on a form. See Cline v. Colvin, 771 F.3d 1098,
1104 (8th Cir. 2014) (treating doctor’s “cursory checklist statement” included
“significant impairments and limitations” which were absent from treatment notes)
(citing Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (concluding the
commissioner “properly discounted” a treating physician's opinion that
“consist[ed] of three checklist forms, cite[d] no medical evidence, and provide [d]
little to no elaboration”).
Sixth, the court notes that upon determining the weight to be given Dr.
Clark’s opinion, the ALJ was fulfilling his roll to evaluate the record as a whole.
See Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007) (holding that a treating
physician=s opinion does not automatically control or obviate the need to evaluate
the record as whole); Tindell v. Barnhart, 444 F.3d 1002, 1004 (8th Cir. 2006) (A>It
is the ALJ's function to resolve conflicts among the various treating and examining

34

physicians.=@). Moreover, to the extent the ALJ did not give Dr. Clark’s entire
opinion great or controlling weight, the ALJ stated good reasons for his doing so.
See King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984) (holding that the ALJ is not
bound by conclusory statements of total disability by a treating physician where
the ALJ has identified good reason for not accepting the treating physician's
opinion, such as its not being supported by any detailed, clinical, or diagnostic
evidence). In conclusion, the court finds that substantial evidence supports the
weight the ALJ gave to Dr. Clark’s opinion, and that the ALJ’s decision, in this
regard, is consistent with the Regulations and case law.
C.

ALJ’s Consideration of Plaintiff’s Mental Impairments at Step Three:
The court first notes that 20 C.F.R. Ch. lll, Pt. 404, Supt. P, App.1 § 12.00(a)

states, in relevant part, that:
The evaluation of disability on the basis of mental disorders requires
documentation of a medically determinable impairment(s),
consideration of the degree of limitation such impairment(s) may
impose on your ability to work, and consideration of whether these
limitations have lasted or are expected to last for a continuous period
of at least 12 months.
Section 12.00(a) further lists mental disorders in diagnostic categories,
which include, as relevant, affective disorders (Listing 12.04) and anxiety-related
disorders (Listing 12.06). The Commissioner has supplemented the familiar fivestep sequential process for generally evaluating a claimant's eligibility for benefits
with additional regulations dealing specifically with mental impairments.
35

20

C.F.R. § 404.1520a.

A special procedure must be followed at each level of

administrative review. See Pratt v. Sullivan, 956 F.2d 830, 834 n.8 (8th Cir. 1992)
(per curiam).
The mere existence of a mental condition, however, is not per se disabling.
See Dunlap v. Harris, 649 F.2d 637, 638 (8th Cir. 1981). The sequential process
for evaluating mental impairments is set out in 20 C.F.R. § 404.1520a. This
Regulation states that the steps set forth in § 404.1520 also apply to the evaluation
of a mental impairment.

20 C.F.R. § 404.1520a(a).

However, other

considerations are included. The first step is to record pertinent signs, symptoms,
and findings to determine if a mental impairment exists.

20 C.F.R. §

404.1520a(b)(1). These are gleaned from a mental status exam or psychiatric
history and must be established by medical evidence consisting of signs,
symptoms, and laboratory findings. 20 C.F.R. §§ 404.1520a(b)(1).
If a mental impairment is found, the ALJ must then analyze whether certain
medical findings relevant to ability to work are present or absent. 20 C.F.R. §
404.1520a(b)(1).

The procedure then requires the ALJ to rate the degree of

functional loss resulting from the impairment in four areas of function which are
deemed essential to work. 20 C.F.R. § 404.1520a(c)(2). Those areas are: (1)
activities of daily living; (2) social functioning; (3) concentration, persistence or

36

pace; and (4) deterioration or decompensation in work or work-like settings. 20
C.F.R. § 404.1520a(c)(3).
The limitation in the first three functional areas of activities of daily living
(social functioning and concentration, persistence, or pace) is assigned a
designation of either Anone, mild, moderate, marked, [or] extreme.@ 20 C.F.R. §
404.1520a(c)(4). The degree of limitation in regard to episodes of decompensation
is determined by application of a four-point scale: ANone, one or two, three, four
or more.@ Id. When Athe degree of []limitation in the first three functional areas@ is
Anone@ or Amild@ and Anone@ in the area of decompensation, impairments are not
severe, Aunless the evidence otherwise indicates that there is more than a minimal
limitation in [a claimant=s] ability to do basic work activities.@

20 C.F.R. §

404.1520a(d)(1). When it is determined that a claimant=s mental impairment(s) are
severe, the ALJ must next determine whether the impairment(s) meet or are
equivalent in severity to a listed mental disorder. This is done by comparing the
medical findings about a claimant=s impairment(s) and the rating of the degree of
functional limitation to the criteria of the appropriate listed mental disorder. See
20 C.F.R. § 404.1520a(d)(2). If it is determined that a claimant has Aa severe
mental impairment(s) that neither meets nor is equivalent in severity to any
listing,@ the ALJ must then assess the claimant=s RFC.
404.1520a(d)(3).
37

20 C.F.R. §

The ALJ in the matter under consideration found that the severity of
Plaintiff’s mental impairments did not meet or medically equal the criteria for
Listings 12.04 or 12.06.

In this regard, the ALJ considered Plaintiff’s daily

activities, as described above in regard to Plaintiff’s credibility, including that he
was able to complete household repairs and did not have difficulty with personal
care activities, and concluded that Plaintiff had a mild restriction in this area. (Tr.
62, 256-57, 294, 296, 309-11, 583).

Plaintiff argues that he had a marked

limitation in regard to activities of daily living because, at times, his hygiene was
fair to poor. (Doc. 16 at 20). Plaintiff reported, however, in April 2012, that he
showered and put on clean clothing daily and that he washed his hands two to four
times a day. (Tr. 586-87). Additionally, as set forth above, it was frequently
reported that Plaintiff was adequately groomed and dressed. (Tr. 417, 605, 617-20,
639-40). See Buckner, 646 F.3d at 555 (finding plaintiff's depression was not
severe where plaintiff engaged in daily activities that were inconsistent with his
allegations). In any case, the record does not reflect that, when Plaintiff was not
well groomed, it was due to a mental impairment. The court finds, therefore, that
the ALJ’s determination that Plaintiff had only a mild limitation in regard to
activities of daily living is based on substantial evidence.
As for social functioning, the ALJ found that Plaintiff had a moderate
limitation. In reaching this conclusion, the ALJ considered that, although Plaintiff

38

testified that he had difficulty getting along with others, he was able to maintain a
relationship with his girlfriend and had never been fired or laid off from a job
because of difficulties getting along with people. The ALJ further considered
notes from Plaintiff’s treatment providers, including their reports that Plaintiff had
normal speech and the ability to discuss problems. (Tr. 62-63, 85-86). Further, as
discussed above, Plaintiff was routinely described as alert, pleasant, cooperative,
and making good eye contact. Additionally, he was comfortable discussing his
problems with his mental health care providers. (Tr. 63, 345, 419, 464, 588, 605,
609-12, 615, 618, 620, 641, 699, 700-01). The court finds, therefore, that the
ALJ’s decision that Plaintiff had only a moderate limitation in the area of social
functioning is based on substantial evidence.
In the area of concentration, persistence, or pace, the ALJ found that
Plaintiff had a moderate limitation. (Tr. 63). In this regard, the ALJ considered
that Plaintiff reported that he could count change, use a checkbook, and complete
money orders. (Tr. 311-12). The ALJ also considered that, although Plaintiff
reported that he had difficulty following both written and spoken instructions, he
did not report any difficulties following television programs. (Tr. 63, 308, 31113).

Notably, as discussed above, Plaintiff’s mental health care providers

repeatedly reported that he was alert and oriented and had logical thoughts, normal
speech, and intact memory. Further, Plaintiff reported, in March 2009, that he was

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working “under the table”; that, during the prior year, he had cut firewood once or
twice a week; and that he worked on vehicles and did general labor on farms on an
average of seven hours a week. (Tr. 576, 583). The court finds, therefore, that the
ALJ’s determination that Plaintiff had only moderate limitations in concentration,
persistence, or pace is based on substantial evidence. Further, the court finds that
the ALJ’s determination that Plaintiff had no episodes of decompensation, which
had been of an extended duration, is based on substantial evidence. (Tr. 63).
To the extent Plaintiff argues that the ALJ did not consider the fluctuating
nature of his bipolar symptoms (Doc. 14 at 20), the court notes that the ALJ did
consider Plaintiff’s testimony that his depression “kick[ed] in every now and then”
and that Plaintiff reported having manic episodes which involved his becoming
very angry for five to seven hours. (Tr. 64, 85). Nonetheless, as discussed above,
the ALJ found Plaintiff’s allegations regarding the severity of his symptoms not
fully credible, and the court has found the ALJ’s credibility determination is based
on substantial evidence.

Additionally, as discussed in regard to Plaintiff’s

credibility, Plaintiff engaged in extensive daily activities, continued work activity,
and benefited from treatment. Because Plaintiff did not have a marked limitation
in any area of functioning and because he had no qualifying episodes of
decompensation, the court further finds that the ALJ’s determination that Plaintiff
did not meet Listings 12.04 or 12.06 is based on substantial evidence. (Tr. 63).

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The Regulations define RFC as Awhat [the claimant] can do@ despite his or
her Aphysical or mental limitations.@ 20 C.F.R. § 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider
the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).
Significantly, the ALJ in the matter under consideration identified Plaintiff’s
functional limitations and restrictions and then assessed his work-related abilities
on a function-by-function basis.

See Masterson, 363 F.3d at 737; Harris v.

Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). Upon formulating Plaintiff’s RFC,
the ALJ accommodated Plaintiff’s impairments, both mental and physical, to the
extent the ALJ found such limitations credible. See Tindell v. Barnhart, 444 F.3d
1002, 1007 (8th Cir. 2006) (AThe ALJ included all of Tindell=s credible limitations
in his RFC assessment, and the ALJ=s conclusions are supported by substantial
evidence in the record.@).

To accommodate Plaintiff’s credible mental

impairments, the ALJ limited Plaintiff to doing only simple, routine, and repetitive
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work with only occasional contact with the public, coworkers, and supervisors.
Moreover, Plaintiff could not engage in tasks at a production rate of pace. (Tr. 63).
As for Plaintiff’s credible physical impairments, the ALJ limited Plaintiff to
medium work with his alternating between sitting, standing, and walking every
forty-five minutes at will, for a brief change, while continuing to work at the
workstation.

The court finds that the ALJ’s RFC determination is based on

substantial evidence and consistent with the Regulations and case law.
The ALJ concluded that Plaintiff could not perform his past-relevant work.
As such, she submitted a hypothetical to a VE which described a person of
Plaintiff’s age and with Plaintiff’s RFC, education, and work experience. To the
extent Plaintiff suggests that the ALJ’s hypothetical to the VE was flawed, the ALJ
was only required to include in the hypothetical those limitations which he found
credible. See Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012); Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (AThe ALJ's hypothetical question to the
vocational expert needs to include only those impairments that the ALJ finds are
substantially supported by the record as a whole.@); Haggard v. Apfel, 175 F.3d
591, 595 (8th Cir. 1999) (holding that the ALJ need not include additional
complaints in the hypothetical not supported by substantial evidence).
The VE testified that given these factors stated in the hypothetical there was
work available in significant numbers in the national economy which Plaintiff

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could perform, including laundry worker, collator, and office helper. (Tr. 111-13).
Because the hypothetical question which the ALJ posed to the VE precisely set
forth all of Plaintiff’s physical and mental impairments, the VE’s testimony
constitutes substantial evidence supporting the ALJ=s decision. Martise v. Astrue,
641 F.3d 909, 927 (8th Cir. 2011) (ABased on our previous conclusion . . . that >the
ALJ's findings of [the claimant=s] RFC are supported by substantial evidence,= we
hold that >[t]he hypothetical question was therefore proper, and the VE's answer
constituted substantial evidence supporting the Commissioner=s denial of
benefits.=@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006));
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s
testimony is substantial evidence when it is based on an accurately phrased
hypothetical capturing the concrete consequences of a claimant=s limitations).
Because there was work that Plaintiff could perform, the court finds that the ALJ’s
conclusion that Plaintiff was not disabled is based on substantial evidence.
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence, on
the record as a whole, supports the Commissioner’s decision that Plaintiff is not
disabled.
Accordingly,

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IT IS HEREBY ORDERED that the relief sought by Plaintiff in his
Complaint and Brief in Support of Complaint (Docs. 1, 16) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 29th day of December, 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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