Tindall-Kolthoff v. Colvin

Filing 21

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief sought by plaintiff in her Complaint and Brief in Support of Complaint (Docs. 1 , 20 ) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 9/27/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

DAWN M. TINDALL-KOLTHOFF,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:15CV46NCC

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 Dawn M. Tindall-Kolthoff (Plaintiff) for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C.
§§ 401 et seq., and for Supplemental Security Income (SSI), under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a Brief in Support of the Complaint.
(Doc. 20). Defendant has filed a Brief in Support of the Answer. (Doc. 17). The parties have
consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title
28 U.S.C. § 636(c). (Doc. 10).
I.
PROCEDURAL HISTORY
On February 6, 2012, Plaintiff filed an application for DIB, and, on April 16, 2012, she
filed an application for SSI. In both applications she alleged a disability onset date of January 1,
2012. (Tr. 139-44, 145-46). Plaintiff’s applications were denied, and she requested a hearing
before an Administrative Law Judge (ALJ). (Tr. 78-79, 90-91). After a hearing, by decision,
dated February 12, 2014, the ALJ found Plaintiff not disabled. (Tr. 11-25). On June 5, 2015, 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, 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.

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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 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).

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“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 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 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;

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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).
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

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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 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

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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 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.

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Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.
1989).
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.
Plaintiff, who was born on April 28, 1974, testified at the administrative hearing that she
lived with her husband and ten-year-old son; that she last worked in January 2012; that she had a
high school equivalency diploma; that she could read, write, and do simple math; that she could
walk for about 15 minutes before having to sit down; that she could stand in one place for about
10 minutes; that she could sit for about 25 minutes; that she dropped things a lot; that she had
headaches 2 to 3 times a week, which lasted from 1 to 3 hours; that she had ringing in her ears
which sounded like a train; that she had numbness from her left elbow down to the tips of her
fingers; that she had numbness in her right hand and toes; that she had low back pain which went
into her buttocks on both sides; that she felt nauseous and had to vomit at least once a day; that
this vomiting had happened for the 3 or 4 years prior to the hearing; that she had bad days with
her bipolar disorder 3 to 4 times a week; that she had anxiety attacks at about 4:00 p.m. every
day; that she had manic days at least once a week; and that, when she had manic attacks, she
could not sleep for two to four days. (Tr. 34-36, 39-40, 43-44, 46-49, 51-52).
The ALJ found that Plaintiff met the insured status requirements since January 1, 2012,
her alleged onset date; that she had the severe impairments of degenerative disc disease,

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borderline personality disorder, bipolar disorder, depression and anxiety; and that she did not
have an impairment or combination of impairments which met or medically equaled a listed
impairment. The ALJ further found that Plaintiff had the RFC to perform a range of sedentary
work, with the following limitations: Plaintiff would require a sit/stand option allowing her to sit
or stand alternatively, at will, provided that she was not off task by ten percent of the work
period; she could occasionally push and pull bilaterally; she could never climb ladders, ropes, or
scaffolds; she could occasionally climb ramps or stairs, stoop, crouch, kneel and crawl; she could
have only occasional rotation, flexion, and extension of the neck; she could frequently reach,
including overhead reaching, bilaterally; she could frequently handle and finger bilaterally; she
had to avoid concentrated exposure to extreme cold and heat; she had to avoid all exposure to
use of hazardous machinery and unprotected heights; she was limited to simple, routine, and
repetitive tasks, with no strict production quotas; she could only occasionally interact with the
general public; and she could be around co-workers throughout the day, but with only occasional
interaction with them. The ALJ concluded that Plaintiff could not perform her past relevant
work; that, based on the testimony of a VE, there was work in the national economy which
Plaintiff could perform; and that, therefore, she was not disabled within the meaning of the Act.
Plaintiff argues that the ALJ’s decision is not based on substantial evidence because: (1)
the ALJ failed to give controlling weight to the opinion of Nitin Kukkar, M.D.; (2) the ALJ
failed to find that Plaintiff’s bipolar disorder equaled the criteria for Listing 12.04; and (3) the
ALJ’s credibility determination was “patently erroneous.” For the following reasons, the court
finds that Plaintiff’s arguments are without merit and that the ALJ’s determination that Plaintiff
is not disabled is based on substantial evidence and is consistent with the Regulations and case
law.

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A.

Plaintiff’s Credibility:
The court will first consider the ALJ=s credibility determination, as the ALJ=s evaluation

of Plaintiff=s credibility was essential to the ALJ=s determination of other issues. 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, 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).

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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 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 Plaintiff had a mild restriction in regard to her daily activities.
In this regard, the ALJ considered Plaintiff was able to care for her ten-year-old son; that she
prepared meals, made beds, and folded laundry; and that she enjoyed gardening for herself and
her neighbors. (Tr. 15). The court notes that Plaintiff stated, in a Function Report – Adult dated
May 31, 2012, that she made breakfast for her son; that she went to physical therapy three days a
week; that she went outside with her son and “walk[ed] around the yard”; that she fixed dinner;
that she fixed her own meals, although, “at times, friends ma[d]e” meals; that she dusted
occasionally and made the bed and did laundry daily; that she went outside on a daily basis; that
she went out alone; that she drove; that she shopped in stores for groceries and clothing; that she
could pay bills, handle a savings account, count change and use a checkbook; that she spent time
with others, including her son and his friends; that she did not need reminders to go places or
need someone to accompany her; that she did not have any problems getting along with family
friends, neighbors, or others; and that her disabling conditions did not affect her ability to talk,
hear, see, and get along with others. (Tr. 173, 175-78). Also, as considered by the ALJ, Plaintiff
told her counselor, on May 9, 2013, that she was gardening for herself and her neighbors; that

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her staying active was something she liked; and that staying active helped her to focus less on the
negative things and to feel better about herself. (Tr. 21, 722).
While the undersigned appreciates that a claimant need not be bedridden before she can
be determined to be disabled, a claimant’s daily activities can nonetheless be seen as inconsistent
with her 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”). 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). To the extent Plaintiff
specifically argues that the ALJ should not have considered Plaintiff’s ability to do housework
and perform self-care when she felt able to do so because the ability to do light housework does
not mean Plaintiff had the ability to perform work activities (Doc. 20 at 23), Plaintiff’s daily
activities, including her ability to perform light housework, were only one of many factors
considered by the ALJ when determining Plaintiff’s credibility.
Second, the ALJ considered inconsistencies in the record and that the record “tended to
diminish the credibility of [Plaintiff’s] testimony.” (Tr. 18). In this regard, the ALJ considered
that, on August 8, 2012, approximately eight months after her alleged onset date, Plaintiff told a

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medical provider that she was looking for work (Tr. 553); that, on October 3, 2012, ten months
after her alleged onset date, Plaintiff told another medical provider that she would like to work,
“although she wanted to do something that she liked to do” (Tr. 537); and that the evidence
suggested that Plaintiff “believes that there was some kind of work activity she could perform.”
(Tr. 18). The ALJ also considered that although Plaintiff testified that she had been vomiting
daily for the last three or four years, on March 22, 3012, she told a provider that she had
occasional nausea, but no vomiting (Tr. 327); that, on September 1, 2013, a provider noted that
Plaintiff said that her back and neck pain were worse after a couple of days of riding a motorbike
(Tr. 709); that, when asked at the hearing about this statement, Plaintiff testified that she did not
remember making it; and that, on May 9, 2013, as discussed above, Plaintiff told a mental health
provider that she liked to say active (Tr. 722).
Plaintiff contends that the ALJ improperly considered Plaintiff’s reports that she wanted
to work. (Doc. 20 at 22). Nonetheless, contradictions between a claimant’s sworn testimony and
what she actually told health care providers weighs against the her credibility.

Karlix v.

Barnhart, 457 F.3d 742, 748 (8th Cir. 2006). Moreover, a claimant’s admitting an ability to work
is a proper consideration for an ALJ. Cf. Melton v. Apfel, 181 F.3d 939, 942 (8th Cir. 1999)
(finding that a claimant’s continued job search “undermine[d] his claim that he was unable to
work”); Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991) (finding claimant’s application
for unemployment benefits adversely affected his credibility; “[a] claimant may admit an ability
to work by applying for unemployment compensation benefits because such an applicant must
hold himself out as available, willing and able to work.”).
Third, the ALJ considered Plaintiff’s non-compliance with the recommendations of her
health care providers, and that, in order to receive benefits, a claimant must follow her doctor’s

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treatment plan if “this treatment can restore her ability to work.” Specifically, as provided by the
case law and Regulations, the ALJ considered that “failure to follow prescribed treatment can be
taken into consideration in not awarding benefits.” (Tr. 18-19). See Wright v. Colvin, 789 F.3d
847, 854 (8th Cir. 2015) (affirming where ALJ found that claimant’s “credibility suffered from
his refusal to take pain medication and his refusal to seek out even conservative treatments such
as physical therapy”); Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (noncompliance is a
basis for discrediting a claimant; when claimant was compliant with dietary recommendations
his pain was under good control; claimant's noncompliance with a diet regimen prescribed by
doctor contributed to a negative credibility determination).
In regard to Plaintiff’s non-compliance, the ALJ considered, and the record establishes,
that Plaintiff’s “flare-ups of [her] mental symptoms often occur[red] after she ha[d] stopped
taking prescribed medications” (Tr. 252, 490); that, in February 25, 2011, after she presented to
the emergency room (ER) with chest pain, Plaintiff “was adamant that she be discharged [] the
next day before testing was completed” (Tr. 320-322); that, in December 2012, prior to surgery
Plaintiff reported smoking for 28 years and her orthopedic surgeon told her that smoking
cessation would help with her general health and bone healing after surgery (Tr. 498, 513); and
that, when Plaintiff established care with a new doctor, in October 2013, she reported that she
was “still a current every day smoker” (Tr. 716). The court also notes that, on April 19, 2011,
when Plaintiff had been off her medications since October 2010, she presented with complaints
of anxiety, which was acute and persistent (Tr. 252), and that, in February 2012, while in the ER,
Plaintiff declined tobacco cessation education. (Tr. 263).
To the extent Plaintiff contends that the ALJ improperly considered her non-compliance
because she had a mental impairment (Doc. 20 at 22), courts have recognized that a mental

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impairment can interfere with a claimant’s ability to follow prescribed treatment and her ability
to have sufficient insight into her illness. See Pate–Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009).
However, in the matter under consideration, there was “no evidence expressly linking
[Plaintiff’s] mental limitations to [her] repeated noncompliance.” Wildman v. Astrue, 596 F.3d
959, 966 (8th Cir. 2010) (noncompliance is a basis for discrediting a claimant; when claimant
was compliant with dietary recommendations his pain was under good control; claimant's
noncompliance with a diet regimen prescribed by doctor contributed to a negative credibility
determination) (distinguishing Pate–Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009), in regard to
holding that schizoaffective disorder can prevent claimant from complying with psychiatric
medication; claimant in Wildman suffered from depression, non-compliance was failing to
follow prescribed diet, there was “no evidence expressly linking [claimant’s] mental limitations
to such repeated noncompliance, and there was conflicting evidence regarding claimant’s alleged
memory and concentration impairments).
To the extent Plaintiff specifically argues that the ALJ erred in considering that she failed
to follow the recommendations of health care providers that she cease smoking because the
record does not establish that if she stopped smoking she would be able to work (Doc. 20 at 23),
as acknowledged by the Commissioner and the ALJ (Doc. 17 at 14, Tr. 19), the Regulations
provide that an ALJ should find a claimant not disabled based on failure to follow treatment only
if the treatment would restore her ability to work.

20 C.F.R. §§ 404.1530, 416.930.

Nonetheless, the ALJ did not find Plaintiff’s failure to stop smoking was the only reason she was
not credible and, ultimately, not disabled; her failure in this regard was one of many factors
considered by the ALJ upon determining that Plaintiff’s assertions regarding the severity of her
conditions were not fully credible. See Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006)

15

(holding that the ALJ properly considered the claimant’s failure to quit smoking in discounting
his complaints); Weber v. Harris, 640 F.2d 176, 178 (8th Cir. 1991).
Fourth, the ALJ considered the clinical and objective findings in regard to Plaintiff’s
alleged physical impairments. (Tr. 19). See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir.
2004); 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 a 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 [her] capacity for basic work
activities to the extent that [her] 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.
As considered by the ALJ, November 23, 2012 magnetic resonance imaging (MRI)
showed spinal stenosis with cervical spinal cord deformity at C5-6 and C6-7. An MRI of the
lumbar spine, of this same date, showed moderate to severe disc bulging with regions of
protrusion producing displacement of traversing nerve roots and Grade 1 anterolisthesis of L5S1. (Tr. 539-40). After Plaintiff underwent an anterior cervical discectomy and fusion done by
Dr. Kukkar, on December 11, 2012, on physical examination at discharge, Plaintiff had full
range of motion (ROM) in the major muscle groups; her strength and sensation were grossly
intact and symmetric; and Plaintiff said she no longer had pain in her hand. (Tr. 19, 513). Dr.
Kukkar recommended that Plaintiff not have physical therapy for the first six weeks after her
surgery. Plaintiff then had physical therapy between February 12, 2013 and March 27, 2013. At
her first session, Plaintiff’s loss of function and motion/stiffness were rated as “mild.” Plaintiff

16

was discharged pursuant to her own request. (Tr. 595-637). Cervical spine x-rays of March 28,
2013, showed her prior fusion at C6-7, a prosthesis at C5 and C6, with the remaining disc spaces
well maintained, and no interval changes in comparison to Plaintiff’s prior study of December
2012. (Tr. 545, 638).
On May 17, 2013, Plaintiff underwent a neural foraminal block, after which Plaintiff
reported complete cessation of pain. (Tr. 704). She had an epidural injection on July 1, 2013,
after which Plaintiff “experienced complete relief of her left-sided pain.” (Tr. 705). When
Plaintiff presented in the ER, on September 1, 2013, with back and neck pain after riding a motor
bike for several days, physical examination showed that Plaintiff had “mild” tenderness to
palpation of the lumbosacral region of her back; that Plaintiff’s lungs were clear; that her vital
signs were within normal limits; that she was “in no acute distress other than mild pain and
discomfort noted”; that her extremities had no cyanosis, clubbing, or edema; that her cranial
nerves “2 through 12 [were] intact; that she had no focal sensory or motor deficits; and that she
was able to stand and ambulate without difficulty. (Tr. 709).
When Plaintiff presented for care with Jeffrey Wells, D.O., on October 18, 2013, she
complained of back pain which radiated to her head and numbness in her arms from her elbows
down, and said she had this pain since her surgery ten months earlier. On examination, Dr.
Wells reported that Plaintiff was alert and in no acute distress; that her gait and motor
examinations were normal; that she had equal movement in all extremities; that she had full
ROM, no asymmetry, deformities, or peripheral edema; that she had no speech difficulties; and
that Dr. Wells told Plaintiff he would not be giving her any more narcotic pain medications. (Tr.
716-18).

17

As for objective findings relevant to Plaintiff’s mental conditions, on June 7, 2012,
Plaintiff underwent a mental health examination in connection with her application for Medicaid
benefits with Licensed Clinical Social Worker Janet Hultgren. David Goldman, J.D., D.O., a
psychiatrist, signed off on Ms. Hultgren’s report. Ms. Hultgren reported that Plaintiff denied
homicidal/suicidal ideations; that Plaintiff’s recent memory was good; that her remote memory
was fair; that her intellectual functioning, insight, and concentration were good; that she was
oriented; that her mood was labile; and that her impression was that Plaintiff had bipolar disorder
and a Global Assessment of Functioning (GAF) of 55.1 On August 8, 2012, Plaintiff reported
that she was in a better mood, was moving, and was looking for work. (Tr. 478-79). An October
3, 2012, Adult Mental Health Assessment from Transitions of Western Illinois states that
Plaintiff said she had been diagnosed with bipolar disorder, and that her symptoms included
trouble falling asleep, feeling badly about herself, being unable to keep her mind on one thing,
being irritable, and having mood swings. (Tr. 465). On October 16, 2012, Plaintiff met with
Nicole Shields, L.C.P.C., who reported that Plaintiff was “withdrawn, said little other than
answering questions posed[,] [and] [w]as tearful at the end but vague about what had triggered
1

Global assessment of functioning (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, 32-34 (4th ed.
rev. 2000). 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 34. 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 Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed. rev. 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).
18

this.” (Tr. 536). On October 23, 2012, Ms. Shields reported that Plaintiff was “more open” and
“unsure about several things.” (Tr. 534). On November 6, 2012, Ms. Shields reported that
Plaintiff was “agreeable to ideas discussed,” was “willing to follow up with [her] homework and
assignment,” and said that she was “looking into finding something to do with her time [which]
[was] a good step towards her reaching her goal. ” Ms. Shields also reported that the plan was
for Plaintiff to find a “hobby/interest/volunteer opportunity” and that Plaintiff reported progress
in this regard. (Tr. 539). On November 13, 2012, Ms. Shields reported that Plaintiff was “more
clear and more open,” and that Plaintiff said that day’s session “was right for her and that [they]
were going [in] the right directions.” (Tr. 527). On December 4, 2012, Ms. Shields reported that
Plaintiff said that “her physical health [was] the primary obstacle at [that] moment.” (Tr. 523).
On December 6, 2012, Valentina Vrtikapa, M.D., conducted a psychiatric evaluation of
Plaintiff and reported that, on examination, Plaintiff made good eye contact; that her language
was appropriate; that her mood was depressive and anxious; that her affect was “somewhat
constricted”; that Plaintiff denied hallucinations, paranoia, and delusions; and that she was awake
and oriented. Dr. Vrtikapa diagnosed Plaintiff with bipolar disorder, not otherwise specified,
borderline personality disorder, and a GAF of 50. (Tr. 490-91). On December 20, 2012,
Plaintiff reported feeling happier following neck surgery, as she had a reduction in pain. (Tr.
515). On January 3, 2013, Plaintiff told Dr. Vrtikapa that she was “doing well.” (Tr. 673). On
January 10, 2013, Plaintiff told Ms. Shields that she had “improved mood and energy which she
link[ed] to continued recovery from surgery.” (Tr. 678). On January 17, 2013, Ms. Shields
reported that Plaintiff had made progress that day “in the area of exploring [the] impact of her
past on her present.” (Tr. 679). On February 5, 2013, Ms. Shields reported that Plaintiff had
“improved life satisfaction,” and was “okay with spacing appts out further.” (Tr. 680). On

19

February 25, 2013, Ms. Shields reported that Plaintiff was more open about her past” and was
tearful. Ms. Shields further reported that progress had been made, and that Plaintiff said “she felt
lighter after [that] session and [thought] it was productive.” (Tr. 681). On March 19, 2013, Ms.
Shields reported that Plaintiff appeared sad, tired, withdrawn and anxious, and was “receptive to
anxiety management techniques but unable/unwilling to talk about other subjects” that day. (Tr.
684). On April 23, 2013, Dr. Vrtikapa increased Plaintiff’s medication to reduce her symptoms.
(Tr. 691). When Plaintiff saw Dr. Vrtikapa, on May 2, 2013, she reported that she was doing
well. (Tr. 664).
Notes from May 2, 2013, reflect that Plaintiff’s mental status examination was normal,
including that her behavior, speech, affect, thought process, insight, judgment, and cognition
were normal. (Tr. 664). On May 9, 2013, Ms. Shields reported that Plaintiff’s response to the
day’s intervention was open; that her mood was more stable in the prior few weeks; that she had
more energy and had been gardening; that Plaintiff’s mood had improved; and that she focused
less on negative events from her past. (Tr. 722).
Fifth, as considered by the ALJ, Plaintiff’s conditions improved with treatment. As
discussed above in regard to the medical evidence of record, after neck surgery, in December
2012, Plaintiff had full ROM, intact strength and sensation, and no longer had pain in her hand;
in February 2013, at her first physical therapy session after surgery, Plaintiff had mild symptoms
and a mild degree of loss of motion and functioning; on March 27, 2013, Plaintiff was
discharged from physical therapy at her own request; after having a neural foraminal block, on
May 17, 2013, Plaintiff reported cessation of low back pain; and, after a July 1, 2013 injection,
Plaintiff reported complete relief of her left-side pain. (Tr. 19).

20

In regard to Plaintiff’s mental conditions, as set forth above, Plaintiff reported, in August
2012, that her “general mood [was] much better”; that an increase in her dosage of Celexa had
helped her mood; that trazadone had improved her sleep; and that she was not “groggy” in the
morning. (Tr. 553). On December 11, 2012, Plaintiff stated that her mental impairments were
fairly well controlled with medication and that counseling helped. (Tr. 498, 501). Also, on
December 20, 2012, Plaintiff’s counselor reported that Plaintiff had a “dramatic improvement in
[her] mood and level of satisfaction following recent neck surgery.” (Tr. 515). In January 2013,
Plaintiff’s counselor reported that Plaintiff was more relaxed and had improved mood and
energy. The counselor associated these improvements with Plaintiff’s continued recovery from
surgery.

(Tr. 677-78).

After Plaintiff reported increased depression, in April 2013, her

medication dosage was adjusted, and, on May 2, 2013, Plaintiff said that she was doing well on
the increased dosage. In fact, on May 2, 2013, it was reported that Plaintiff’s medication
efficacy was good. (Tr. 688-92, 664). On May 9, 2013, Plaintiff said that her mood had been
more stable in the prior few weeks; that she had improved energy; and, as discussed above, that
she had been gardening for herself and her neighbors. (Tr. 722).
Sixth, the ALJ considered lapses in Plaintiff’s medical treatment. In particular, the ALJ
considered that although Plaintiff was advised to follow-up with her doctor when she presented
to the ER on September 1, 2013, with back pain, the record does not reflect that Plaintiff
presented for treatment until October 18, 2013, when she established care with Dr. Wells. (Tr.
20). A lack of regular treatment for an alleged disabling condition detracts from a claimant=s
credibility. See Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006) (upholding an ALJ’s
determination that a claimant lacked credibility due in part to “absence of hospitalizations . . .,
limited treatment of symptoms, [and] failure to diligently seek medical care”).

21

Seventh, the ALJ considered that Plaintiff underwent a mental health examination in
connection with her application for Medicaid benefits with Ms. Hultgren, as described above;
that Dr. Goldman, a psychiatrist, signed off on the examination; that both Ms. Hultgren and Dr.
Goldman were specialists in their fields; that Ms. Hultgren recommended that Plaintiff receive
Medicaid; and that Plaintiff was found disabled for purposes of receiving Medicaid based on the
report of Ms. Hultgren and Dr. Goldman. The ALJ, however, found that this determination was
not binding on the Commissioner in regard to Plaintiff’s applications for disability under the Act,
although the Medicaid determination was a factor to consider. The ALJ concluded that the
determination that Plaintiff was disabled for purposes of Medicaid should be given “little
weight” because the issue of Social Security disability is reserved for the Commissioner; the
issue was whether Plaintiff had the RFC to perform work activity; and the medical evidence of
record (MER) supported the conclusion that Plaintiff could “work well within” the RFC which
the ALJ assigned to her. (Tr. 22).
Plaintiff contends that the ALJ erred in discounting the assessment of Ms. Hultgren
because the evidence of disability from another governmental or non-governmental agency must
be considered. (Doc. 20 at 23). Indeed, findings of disability by other federal agencies, even
though they are not binding on an ALJ, are entitled to some weight and must be considered in the
ALJ=s decision.

Morrison v. Apfel,146 F.3d 625, 628 (8th Cir. 1998) (citing Wilkins v.

Callahan, 127 F.3d 1260, 1262 (10th Cir. 1997); Baca v. Department of Health and Human
Services, 5 F.3d 476, 480 (10th Cir. 1993); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir.
1979)). An ALJ, however, Ais not bound by the disability rating of another agency when he is
evaluating whether the claimant is disabled for purposes of social security benefits, 20 C.F.R. '
404.1504.@ Pelkey v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006) (quoting Fisher v. Shalala, 41

22

F.3d 1261, 1262 (8th Cir. 1994) (per curiam) (AThere is no support for [the claimant]=s
contention that his sixty-percent service-connected disability rating equates with an inability to
engage in any substantial gainful activity under social security standards.@). In the matter under
consideration, the ALJ did not ignore the findings of Ms. Hultgren regarding Plaintiff’s
eligibility for Medicaid. Rather, he considered and discussed the underlying medical evidence
and stated his reasons for disagreeing with the determination that Plaintiff was disabled. See id.
Significantly, when recommending that Plaintiff receive Medicaid coverage, Ms. Hultgren was
applying the regulations of another governmental agency. In any case, Ms. Hultgren’s findings,
upon examination of Plaintiff, that her intellectual functioning, insight, and concentration were
good, that she was oriented, and that her recent memory was good and remote memory fair, are
not inconsistent with the RFC which the ALJ assigned to Plaintiff. As such, the court finds that
the ALJ gave proper weight to Ms. Hultgren’s opinion that Plaintiff should receive Medicaid.
Eighth, the ALJ considered that Plaintiff “was able to participate in the administrative
hearing closely and fully without being distracted and without any overt pain behavior,” and that
she was able to respond to questions by her examiners in an appropriate manner. (Tr. 18).
Plaintiff contends that the ALJ erred in considering her demeanor at the hearing. (Doc. 20 at 2122). While an ALJ cannot accept or reject subjective complaints solely on the basis of personal
observations, Ward v. Heckler, 786 F.2d 844, 847-48 (8th Cir. 1986), an ALJ's observations of a
claimant=s appearance and demeanor during the hearing is a consideration, Steed v. Astrue, 524
F.3d 872, 876 (8th Cir. 2008) (holding that an ALJ Ais in the best position@ to assess credibility
because he is able to observe a claimant during his testimony); Johnson v. Apfel, 240 F.3d 1145,
1147-48 (8th Cir. 2001) (AThe ALJ=s personal observations of the claimant=s demeanor during the
hearing is completely proper in making credibility determinations@); Jones v. Callahan,122 F.3d

23

1148, 1151 (8th Cir. 1997) (AWhen an individual's subjective complaints of pain are not fully
supported by the medical evidence in the record, the ALJ may not, based solely on his personal
observations, reject the complaints as incredible.@). Here, to reach his conclusion, the ALJ
combined his review of the record as a whole with his personal observations.
Ninth, the ALJ considered third-party function reports filed by Plaintiff’s current and exhusbands, and that these reports generally supported Plaintiff’s allegations regarding the severity
of her impairments. The ALJ afforded these reports little weight for the same reasons he
discounted Plaintiff’s allegations regarding the severity of her conditions, and gave them weight
only to the extent they were consistent with the medical evidence of record. (Tr. 22, 196-204,
212-15). An ALJ may discount corroborating testimony on the same basis used to discredit the
claimant’s testimony. See Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 2006). Further, to the
extent Plaintiff suggests that the ALJ did not consider third-party evidence in sufficient detail,
where the same evidence that the ALJ relied upon when discrediting the testimony of the
claimant would have been the same evidence which would have supported discrediting the
testimony of third parties, the ALJ=s failure to fully address the assertions of third parties is
Ainconsequential.@ Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
In conclusion, the court finds that the ALJ gave good reasons for finding Plaintiff’s
allegations regarding the severity of her conditions not fully credible, and that the ALJ’s analysis
was carefully linked to the evidence of record. See Karlix v. Barnhart, 457 F.3d 742, 748 (8th
Cir. 2006) (“If an ALJ explicitly discredits a claimant’s testimony and gives a good reason for
doing so, we will normally defer to that judgment.”) (internal quotation marks and citation
omitted). As such, the court further finds that the ALJ’s credibility determination is based on
substantial evidence and is consistent with the Regulations and case law.

24

B.

Opinion of Nitin Kukkar, M.D.:
In a Medical Source Statement of Ability to Do Work-Related Activities (Physical),

dated October 31, 2013, Dr. Kukkar opined that Plaintiff could lift and carry no more than 20
pounds on an occasional basis; that she could lift and carry no more than 10 pounds on a frequent
basis; that she could stand and walk, with normal breaks, 4 hours in an 8-hour workday; that she
could sit, with normal breaks, 6 hours in an 8-hour workday; that she could sit for 45 minutes
before having to change positions; that she could stand 20 minutes before having to change
positions; that she had to walk around “6-7” times in an 8-hour day; that she needed the
opportunity to shift at will “from sitting or standing/walking”; that she needed to lie down at
unpredictable intervals; that she could frequently twist, stoop, climb stairs and ladders, reach,
handle, finger, and feel; that she could occasionally crouch and push/pull; that she should avoid
concentrated exposure to extreme cold and heat, high humidity, perfumes solvents/cleaners, and
chemicals; that she should avoid moderate exposure to fumes, odors, dusts, gases, and “soldering
fluxes”; that she would have to be absent about 4 days a month; that 20% of the time during a
typical workday Plaintiff’s symptoms would be severe enough to interfere with her attention and
concentration need to perform even simple work; that she needed to take unscheduled 10 minute
breaks 4 to 5 times a day; and that these limitations were a result of her neck and/or back pain.
(Tr. 712-15). The ALJ gave Dr. Kukkar opinion only partial weight. (Tr. 21). Plaintiff argues
that the ALJ erred in doing so because Dr. Kukkar was her treating doctor and a specialist in
orthopedics, and that, therefore, Dr. Kukkar’s opinion should have been given controlling
weight. (Doc. 20 at 15-25). For the following reasons, the court finds that the ALJ gave proper
weight to Dr. Kukkar’s opinion, and that the ALJ’s decision in this regard is based on substantial
evidence and is consistent with the case law and Regulations.

25

First, the ALJ gave Dr. Kukkar’s opinion partial weight because “it appear[ed] that the
limitations [he imposed] regarding [Plaintiff’s] missing work and being off task appear[ed] to be
sympathetic opinions,” and were not consistent with Dr. Kukkar’s own objective findings. (Tr.
21). See Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013) (affirming where ALJ declined to
give treating doctor’s opinion controlling weight where it was inconsistent with the doctor’s
treatment notes).
Second, upon determining the weight to be given Dr. Kukkar’s opinion, the ALJ
considered that his opinion was not consistent with the records of other medical providers. (Tr.
21). See Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (holding that a treating physician=s
opinion is given controlling weight Aif it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence@). In
particular, the ALJ considered that, although Plaintiff complained of neck and back pain, one
month prior to the hearing, when she presented to Dr. Wells, Dr. Wells stated that he would not
prescribe narcotic pain medication for Plaintiff; his findings on physical examination were
generally normal, including that Plaintiff had a normal gait and motor examination and full
ROM; and he did not order studies or refer Plaintiff to an orthopedic specialist. (Tr. 21, 716-18).
The court notes that upon discharge after Plaintiff’s December 2012 surgery, Plaintiff’s strength
and sensation were “grossly intact” and she had full ROM in all muscle groups. (Tr. 513). As
discussed above, at her first session of physical therapy, approximately six weeks after surgery,
the therapist described Plaintiff’s loss of function and motion/stiffness as mild. (Tr. 596). Also,
in September 2013, on examination, Plaintiff had only mild tenderness to palpation of her back,
she was in no acute distress, and she could ambulate, without difficulty. (Tr. 709).

26

Third, the ALJ considered that Dr. Kukkar’s opinion that Plaintiff would miss work and
be excessively off task was conclusory, with little explanation. Moreover, the limitations Dr.
Kukkar indicated were limitations on Plaintiff’s ability to perform work-related activities by
making checkmarks on a form. (Tr. 21). An ALJ may discount an opinion that “‘consists of
nothing more than vague, conclusory statements.’” Toland v. Astrue, 761 F.3d 931, 937 (8th
Cir. 2014) (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)). Cf. Johnson v.
Astrue, 628 F.3d 991, 992 (8th Cir. 2011) (holding that checkmarks on a Medical Source
Statement are Aconclusory opinions@ which can be discounted if contradicted by other objective
medical evidence); Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (A>The checklist
format, generality, and incompleteness of the assessments limit [the assessments'] evidentiary
value=. . . . Indeed, >[a] treating physician's opinion deserves no greater respect than any other
physician's opinion when [it] consists of nothing more than vague, conclusory statements.=@)
(quoting Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) and Piepgras v. Chater, 76
F.3d 233, 236 (8th Cir. 1996)).
Fourth, as stated above, when Dr. Kukkar rendered his opinion in October 2013 he had
not seen Plaintiff since the prior May. Cf. 20 C.F.R. §§ 404.1527(d)(2)(i) & 416.927(d)(2)(i)
(AGenerally, the longer a treating source has treated [a claimant] and the more times [the
claimant has] been seen by a treating source, the more weight [the Commissioner] will give to
the source's medical opinion.@); Martise v. Astrue, 641 F3d 909, 926 (8th Cir. 2010) (“When
deciding how much weight to give a treating physician's opinion, an ALJ must also consider the
length of the treatment relationship and the frequency of examinations.”) (internal quotation and
citation omitted).

27

Fifth, the limitations imposed by the ALJ in his RFC determination reflect that he gave
some weight to Dr. Kukkar’s opinion, to the extent that Dr. Kukkar’s opinion was consistent
with the record as a whole. 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
demonstrating 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 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.@). Indeed, the ALJ limited
Plaintiff to sedentary work, which requires that a claimant be able to lift no more than 10 pounds
on a frequent basis and walk or stand for approximately 2 hours in an 8-hour day. 20 C.F.R. §.
404.1567(a). As stated above, Dr. Kukkar opined that Plaintiff could lift and carry no more than
20 pounds on an occasional basis; that she could lift and carry no more than 10 pounds on a
frequent basis; and that she could stand and walk, with normal breaks, 4 hours in an 8-hour
workday.
Sixth, to the extent Plaintiff argues that the ALJ failed to explain how the weight he gave
to Dr. Kukkar’s opinion is partial weight (Doc. 20 at 15-17), the ALJ did engage in a lengthy
detailed discussed regarding the reasons he gave Dr. Kukkar’s opinion only partial weight and
the reasons he discredited portions of Dr. Kukkar’s opinion.
Seventh, the extreme limitations imposed by Dr. Kukkar were inconsistent with what
Plaintiff told medical providers. Indeed, after her December 2012 surgery, Plaintiff stated that
her hand was no longer causing her pain. (Tr. 513). Plaintiff reported that she had complete
cessation of pain after an injection in May 2013 and complete relief after a July 2013 injection.

28

(Tr. 704-705).

Also, as discussed above in regard to Plaintiff’s credibility, she told her

counselor, in May 2013, that she was gardening and staying active (Tr. 722), and, in August and
October 2012, Plaintiff expressed a desire to work (Tr. 537, 553).
Eighth, although Plaintiff argues that the ALJ should have given Dr. Kukkar’s opinion
controlling weight because he was an orthopedist, and, therefore, a specialist in his field, the ALJ
was not required to give Dr. Kukkar’s opinion controlling weight to the extent it was not
supported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with substantial evidence in the record. In any case, Plaintiff did not receive regular
treatment from Dr. Kukkar.2 See Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004)
(“Vega’s March letter . . . is not entitled to controlling weight as a medical opinion of a treating
source. When she filled out the checklist, Vega had only met with Randolph on three prior
occasions.”).
Ninth, Dr. Kukkar did not indicate Plaintiff had extreme limitations in her medical
records. See Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007) (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).
Tenth, upon determining the weight to be given Dr. Kukkar’s opinion, the ALJ was
fulfilling his role to evaluate the record as a whole. Id. (holding that a treating physician=s
opinion does not automatically control or obviate the need to evaluate the record as whole).
Accordingly, the Court finds that the ALJ gave proper weight to Dr. Kukkar’s opinion
upon determining the severity of Plaintiff’s impairments and her RFC, and that the ALJ’s
decision, in this regard, is based on substantial evidence.
2

Plaintiff suggests that she saw Dr. Kukkar on four occasions, and Defendant suggests Plaintiff
saw him three times. In any case, the parties agree that Plaintiff did not see Dr. Kukkar on more
than four occasions.
29

C.

Listing 12.04:
If an ALJ finds a claimant has a mental impairment, 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 pace; and (4) deterioration or decompensation in work or worklike settings. 20 C.F.R. § 404.1520a(c)(3). (For § 12.04 see Myers v. Colvin, 721 F.3d 521, 526
(8th Cir. 2013) (where no episodes of decompensation or demonstrated susceptibility to such
episodes, to meet paragraph C criteria, claimant must show current history of inability to
function outside a highly supportive living arrangement; highly supportive settings include
hospitals, halfway houses, care facilities, and personal home settings that “greatly reduce the
mental demands place on [the claimant].”).
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:
A[n]one, 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

30

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).
The Listings describe impairments severe enough to prevent a claimant from doing any
gainful activity regardless of age, education, or work experience. 20 C.F.R. §§ 404.1525(a),
416.925(a). As stated by the Court in Sullivan v. Zebley, 493 U.S. 521, 532 (1990):
The [Commissioner] explicitly has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard. The listings
define impairments that would prevent an adult, regardless of [her] age,
education, or work experience, from performing any gainful activity, not just
“substantial gainful activity.” See 20 C.F.R. § 416.925(a) (1989) (purpose of
listings is to describe impairments “severe enough to prevent a person from doing
any gainful activity”) . . . The reason for this difference between the listings’
level of severity and the statutory standard is that, for adults, the listings were
designed to operate as a presumption of disability that makes further inquiry
unnecessary.
Indeed, the burden is on the claimant to show that she meets a listing, including all of a
listing’s criteria because “[a]n impairment that manifests only some of [the] criteria, no matter
how severely, does not qualify. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004)
(quotation omitted). See also Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014) (“To meet
a listing, a claimant must show that he or she meets all of the criteria for the listed impairment.”;
“[a]n impairment that manifests only some of those criteria, no matter how severely, does not
qualify.”) (internal quotations and citations omitted); Marciniak v. Shalala, 49 F.3d 1350, 1353
(8th Cir. 1995) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (AFor a claimant to show
that his impairment matches a listing, it must meet all of the specified medical criteria.@).
In relevant part, 20 C.F.R. Ch. lll, Pt. 404, Supt. P, App.1 § 12.00(a) states, 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

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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. In particular, Listing §
12.04, affective disorder, states:
12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied
by a full or partial manic or depressive syndrome. Mood refers to a prolonged
emotion that colors the whole psychic life; it generally involves either depression
or elation.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied, or when the requirements in C are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one of
the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences
which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes);

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AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic affective disorder of at least 2
years' duration that has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently attenuated by medication
or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
Thus, pursuant to Listing 12.04, a claimant’s affective disorder is disabling when it
satisfies, among other things, the Listing’s paragraph B criteria. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, 12.04. Paragraph B requires the claimant to show that her affective disorder has resulted
in at least two of the following: marked restriction in daily activities, marked difficulties in
social functioning, marked difficulties in concentration, persistence, or pace, or repeated
episodes of decompensation.

Id.

The ALJ found that Plaintiff’s mental impairments had

resulted in only mild limitation in daily activities, moderate limitation in social functioning,
moderate limitation in concentration, persistence, or pace, and no episodes of decompensation.
(Tr. 15-16). Thus, the ALJ found that Plaintiff did not meet Listing 12.04.
Plaintiff contends that the ALJ erred in this regard and that her mental impairments did
meet Listing 12.04 because the ALJ ignored evidence from her May 2012 Function Report-

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Adult (Function Report) which shows that she had difficulty with daily activities, getting along
with others, and completing tasks. Plaintiff further argues that the ALJ failed to consider her
GAF scores and that they would have established that she met Listing 12.04. (Doc. 20 at 18-20).
For the following reasons, the court finds that the ALJ’s determination that Plaintiff did not meet
Listing 12.04 is based on substantial evidence and is consistent with the Regulations and case
law.
First, the ALJ did consider Plaintiff’s Function Report, as he specifically discussed
Plaintiff’s allegations regarding her abilities in explaining why she did not meet paragraph B
criteria.

(Tr. 15-16).

Indeed, the ALJ cited Plaintiff’s statements in the Function Report

regarding things she could no longer do because of her conditions, but also noted that Plaintiff
stated in the Function Report that she could care for her ten-year-old son, prepare meals, dust,
make beds, and fold laundry. (Tr. 15, 174-75).
To the extent Plaintiff argues that the ALJ should have considered her statements in the
Function Report in greater detail, the ALJ’s failure to mention every statement made by Plaintiff
in the Function Report does not mean that the ALJ did not consider the Function Report in its
entirety. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 n.3 (8th Cir. 2005) (AThe fact
that the ALJ=s decision does not specifically mention the [particular listing] does not affect our
review.@); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995).
The ALJ, moreover, included in Plaintiff’s RFC several limitations which reflected
Plaintiff’s description in the Function Report of what she was capable of doing. For example,
Plaintiff said, in the Function Report, that she had difficulty lifting objects, pulling, bending,
squatting, and kneeling, and the ALJ limited her to sedentary work, with only occasionally
pulling, stooping, crouching, and kneeling.

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Further, Plaintiff said she had problems

concentrating, understanding, and following instructions, and the ALJ limited her to simple,
routine, repetitive tasks with no strict production quotas. (Tr. 16-17, 178).
As for the ALJ’s determination that Plaintiff had only a mild restriction in the area of
activities of daily living, as discussed above in regard to Plaintiff’s credibility, in addition to
caring for her young son, Plaintiff reported, in the Function Report, that she did laundry, went
outside with her son, attended physical therapy three days a week, dusted occasionally, drove,
shopped, and spent time with others.

Additionally, as discussed above, Plaintiff said she

gardened and the record reflects that she went motorbike riding. As such, the court finds that the
ALJ’s determination that Plaintiff had only a mild restriction in regard to her activities of daily
living is based on substantial evidence.
As for Plaintiff’s concentration, persistence, or pace, the ALJ found that Plaintiff had
moderate difficulties. (Tr. 16). In this regard, the ALJ considered that although Plaintiff claimed
she had difficulty with understanding, memory, concentration, following instructions, and
completing tasks, she also stated in the Function Report that she was able to count change, pay
bills, handle bank accounts, and drive.

Additionally, the medical providers reported that

Plaintiff’s recent memory was good; that her intellectual functioning, insight, and concentration
were good; that she made good eye contact; that her behavior, thought process, insight, and
judgment were normal; and that Plaintiff made progress in regard to her mental conditions with
counseling, with her recovery from surgery, and with medication adjustment. (Tr. 478-79, 49091, 527, 539, 664, 673, 679, 681, 691, 722).

As such, the court finds that the ALJ’s

determination that Plaintiff had a moderate limitation in the area of concentration, persistence, or
pace is based on substantial evidence.

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As for episodes of decompensation, the ALJ considered there was no evidence that
Plaintiff had inpatient psychiatric treatment or an exacerbation of her mental symptoms
accompanied by a loss of adaptive functioning that lasted for an extended duration. The court
finds, therefore, that the ALJ’s determination that the B criteria for Listing 12.04 were not met is
based on substantial evidence and is consistent with the Regulations and case law.
Although Plaintiff argues that the ALJ ignored her GAF scores, the ALJ did consider that
Dr. Vrtikapa reported that Plaintiff’s GAF was 50 (Tr. 491), and correctly noted that a score of
50 was borderline, in that scores of 41 to 50 indicate serious symptoms and a score of 51
indicates only moderate symptoms and limitations. See n.1 below. Further, although in October
2012, Plaintiff also had a score of 48, in June 2012, Ms. Hultgren assessed Plaintiff’s GAF as 55,
which is clearly within the moderate range. (Tr. 311, 472). In any case, “the Commissioner has
declined to endorse [GAF] score[s] for use in the Social Security and [SSI] disability programs,
and has indicated that [GAF] scores have no ‘direct correlation to the severity requirements of
the mental disorders listings.” Jones v. Astrue, 619 F.3d 963, 974-75 (8th Cir. 2010) (quoting 65
Fed. Reg. 50746, 50764–65 (Aug. 21, 2000) (internal quotations omitted). Further, ALJ may
afford greater weight to medical evidence and testimony than to GAF scores. Jones v. Astrue,
619 F.3d 963, 974 (8th Cir. 2010). Finally, to the extent that the ALJ did not discuss all of
Plaintiff’s GAF scores, the ALJ’s failure to do so was not outcome determinative. Karlix v.
Barnhart, 457 F.3d 741, 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.@ (citing
Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003)).
In conclusion, the court finds that the ALJ’s determination that Plaintiff did not meet the
criteria for Listing 12.04 is based on substantial evidence and is consistent with the Regulations

36

and case law. Because the ALJ found that Plaintiff did not meet or medically equal Listing
12.04, the ALJ proceeded to determine Plaintiff’s RFC. 20 C.F.R. § 404.1520a(d)(3). As
discussed above, the ALJ found that Plaintiff had the RFC for sedentary work with additional
environmental and exertional and non-exertional limitations. The court finds that the ALJ’s RFC
determination is based on substantial evidence and is consistent with the Regulations and case
law.
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,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and
Brief in Support of Complaint (Docs. 1, 20) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this Memorandum
and Order.
Dated this 27th day of September, 2016.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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