Henderson v. Social Security Administration

Filing 19

MEMORANDUM: For the reasons set forth above, the court finds that the decision of the ALJ is supported by substantial evidence in the record as a whole and is consistent with the applicable law. The decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 1/16/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELIZABETH HENDERSON,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security, )
)
Defendant.
)

No. 4:11 CV 1826 DDN

MEMORANDUM
This action is before the court for judicial review of the final
decision

of

defendant

Commissioner

of

Social

Security

denying

the

application of plaintiff Elizabeth Henderson for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et
seq. and for supplemental security income under Title XVI, 42 U.S.C. §
1381,

et seq.

The parties have consented to the exercise of plenary

authority by the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c).

For the reasons set forth below, the court affirms

the decision of the Administrative Law Judge (ALJ).
I. BACKGROUND
In February 2010 plaintiff filed her applications, alleging she
became disabled on April 9, 2009 when she was 42 years old due to
depression,

panic

disorder,

chronic

obstructive

pulmonary

(COPD), emphysema, and bipolar manic depressive disorder.

disorder

(Tr. 8, 19,

104-17, 135.)

Her claims were denied initially and after a hearing

before an ALJ.

(Tr. 8-20, 50-52, 61-67.)

On September 16, 2011, the

Appeals Council denied plaintiff's request for review. (Tr. 1-3.) Thus,
the decision of the ALJ stands as the final decision of the Commissioner.
II. MEDICAL AND OTHER HISTORY
Plaintiff completed some high school and has a GED.
work as a cashier, harvest worker, and receptionist.
On

February

25,

2009,

plaintiff

psychiatrist, for an initial evaluation.

saw

Jyothi

She has past

(Tr. 18-19, 137.)
Mandava,

M.D.,

a

Dr. Mandava noted that she had

last seen plaintiff two years earlier.
cocaine abuse.

Plaintiff had a history of crack

Plaintiff complained that she was easily agitated,

depressed, stayed in bed all day and did not leave her home, did not like
or get along with others, could not hold a job, and panicked when meeting
people. Dr. Mandava diagnosed bipolar-depression and cocaine abuse. She
assigned a Global Assessment of Functioning (GAF) score of 55,1 indicating
moderate symptoms. Plaintiff was not taking any prescription medication.
Dr. Mandava prescribed Lexapro, an antidepressant, and Topamax, an antiseizure medication also used to treat bipolar disorder.

(Tr. 317-18.)

On March 17, 2009, plaintiff saw Matthew Beckerdite, M.D., with
complaints of fatigue. She reported that she was struggling to carry out
day-to-day

responsibilities.

Dr.

fatigue and ordered blood work.

Beckerdite

diagnosed

malaise

and

(Tr. 265.)

Plaintiff saw Dr. Mandava on April 9, 2009.

She was currently

depressed. She stayed in bed, and had diminished energy, motivation, and
interest.

She was overweight.

Plaintiff stated that she did not like

or get along with people, could not hold down a job, and panicked when
meeting people.
three

(Tr. 316-17.)

sentences,

without

In a short letter, Dr. Mandava opined in

underlying

data,

that

plaintiff

was

psychiatrically unstable, that she was disabled for the next twelve
months, and that she was homebound due to her symptoms.

(Tr. 276.)

On April 1, 2010, plaintiff saw Dr. Mandava. Dr. Mandava noted that
she had not seen plaintiff since April 9, 2009 and that plaintiff had not
been on medication for the past 10 months because she had lost her health
insurance.

Plaintiff was depressed and reported that she had not left

her bedroom all winter.

She had had a severe panic attack a few weeks

earlier and was seen in the emergency room.

Her GAF score was 50,

indicating serious symptoms. Dr. Mandava prescribed Lexapro and Topamax.
On April 30, 2010, plaintiff saw Dr. Mandava with complaints of
panic attacks and difficulty breathing.

1

Dr. Mandava increased her

A GAF score has two components. The first component covers
symptom severity and the second component covers functioning. A
patient’s GAF score represents the worst of the two components.
Diagnostic and Statistical Manual of Mental Disorders, 32-34 (4th ed.
2000).
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Lexapro.

(Tr. 314-15.)

She saw Dr. Mandava on June 8, 2010.

She was not having panic

attacks and was still a “little depressed” and sometimes had mood
fluctuations.

She was losing her Medicaid coverage and had applied for

disability benefits.

She was getting married in four days.

Dr. Mandava

changed her Lexapro to a prescription for Celexa, another antidepressant.
(Tr. 468.)
On June 10, 2010, medical consultant Marsha Toll, PsyD, completed
a Psychiatric Review Technique Form.

Dr. Toll opined that plaintiff had

moderate restriction of activities of daily living, in maintaining social
functioning, and in maintaining concentration, persistence, or pace, and
no episodes of decompensation.

Dr. Toll concluded that there was

insufficient evidence to make a decision on plaintiff's claim for Title
II benefits because there was no medical evidence of record on mental
health complaints from April 2009 to April 2010.

Dr. Toll opined that

plaintiff's mental health had improved since she returned to treatment
and was taking medication. She also found plaintiff not credible because
the extremes noted in plaintiff’s function report were inconsistent with
the evidence in the file.

(Tr. 320-31.)

Dr. Toll also completed a Mental RFC Assessment. She concluded that
plaintiff had no "marked" limitations, but had “moderate” limitations in
her ability to carry out detailed instructions; her ability to maintain
attention and concentration for extended periods; her ability to work in
coordination with or proximity to others without being distracted by
them; and her ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform work at
a consistent pace without a reasonable number and length of rest periods.
With respect to social interaction, she had moderate limitations in her
ability to interact appropriately with the general public; her ability
to accept instructions and respond appropriately to criticism from
supervisors; and her ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes.
adaptation,

she

had

marked

limitation

in

her

With respect to

ability

to

respond

appropriately to changes in the work setting.
Dr. Toll concluded plaintiff retained the ability to perform simple
-3-

work and make simple work related decisions.

Due to plaintiff's panic

disorder in response to interactions with others, she should avoid work
environments that required close and intense relationships.

(Tr. 332-

34.)
August 25, 2010 records from plaintiff’s primary care provider,
Volunteers in Medicine, state that plaintiff had “good control” with
Lexapro and Topamax.
over 30 years.

She had quit smoking, but had smoked heavily for

(Tr. 16, 527-36.)

On May 5, 2011, plaintiff saw David A. Lipsitz, Ph.D., clinical
psychologist, for a psychological and intellectual evaluation. Plaintiff
reported that she was diagnosed with bipolar disorder in 1996 after a
violent rape.

Since that time, she has had extreme flashbacks and

nightmares. She is paranoid and checks her windows and doors constantly.
She has had bad mood swings, described as more homicidal than suicidal.
Plaintiff stated that she was depressed all the time and lived in her
bedroom. She reported that her panic disorder seemed to be under control
and that while medication helps, it seems to wear off after several
months.

(Tr. 533-36.)

Plaintiff had a full scale IQ of 71.

Test scores were below

average, suggesting deficient cognitive functioning.

Dr. Lipsitz opined

that plaintiff’s IQ placed her in the lower part of “borderline” range.
Dr. Lipsitz diagnosed recurrent major depression with panic attacks and
PTSD.

Her GAF score was 47, indicating serious symptoms.

Dr. Lipsitz

opined that plaintiff was in need of ongoing psychiatric treatment
combining medication and individual psychotherapy.

(Tr. 533-36.)

Testimony at the Hearing
On May 11, 2011, plaintiff appeared and testified to the following
at a hearing before an ALJ.

(Tr. 21-49.)

She is 44 years old and lives

in a mobile home with her husband and two children.
drive due to her panic attacks.

She is unable to

(Tr. 21-27, 38.)

She last worked at a temporary agency in 2008 doing harvesting
work, driving vehicles, and moving papers.

She also worked as an intake

worker at the Salvation Army and as a cashier.

She could not maintain

these jobs because she is not mentally stable.

Her COPD prevents her

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from working in dusty or perfume laden places.

She can mow her small

lawn although it requires five or six hours to do so.

(Tr. 26-35.)

She is able to walk around a grocery store, sit without difficulty,
and climb a flight of stairs.

She has problems with memory.

She has

panic attacks two or three times per week.

She sits in her bedroom all

day, watching TV and cleaning her room.

She can dust, vacuum, wash

walls, and rearrange her closet and drawers.

She sometimes cooks meals.

(Tr. 36-40.)
She no longer sees Dr. Mandava because she does not receive Medicaid
and has no money.

She has crying spells a couple of times per week.

She

is not sure what triggers them, although she does not have a happy
marriage.

(Tr. 40-41.)

Vocational Expert (VE) Gary Wiemholt also testified at the hearing.
Plaintiff has prior relevant work (PRW) as an unskilled entry level
cashier, classified as light; fruit harvest worker, classified as light
and medium; as well as temporary jobs, including production worker,
classified as light and unskilled.

(Tr. 42-45.)

The ALJ posed hypothetical questions to the VE. The first described
a hypothetical person with plaintiff’s age, education,

and PRW who was

capable of performing light work, but who was limited to performing
simple, repetitive tasks and can only have occasional contact with
coworkers, supervisors, and the public, and no transactional interaction
with the public.

The VE testified that plaintiff could perform her past

jobs such as production assembler and production worker.

(Tr. 45-46.)

In the second hypothetical, the ALJ assumed the same limitations as
the first, except that the individual was limited to performing sedentary
instead of light work.

The VE testified that such an individual would

be unable to perform plaintiff’s PRW. The VE testified that some similar
type jobs would be available, for example, packaging pharmaceuticals or
other small plastic items, as well as small part assembly jobs.

(Tr.

46.)
In a third hypothetical, the ALJ assumed the same hypothetical
person as described in the second question, except that the individual
would need to elevate her leg up to 24 inches from the floor for two
hours at least once per week.

The VE testified that the same sedentary
-5-

jobs would be available even if the individual needed to elevate a leg
up to two hours twice per week.

(Tr. 46-47.)

In a fourth hypothetical the ALJ assumed all of the limitations as
the second, except that the individual would be off work once a week due
to medical issues such as panic attacks.

The VE testified that such an

individual would not be able to perform any of the previously mentioned
jobs.

(Tr. 47-48.)
On examination by plaintiff’s counsel, the VE assumed the same

limitations as the first hypothetical with the added limitation that the
individual was not able to maintain concentration, persistence, and pace
for 75 to 80 percent of the time or longer due to pain or mental issues.
The VE testified that there would be no jobs that such an individual
could perform.

Counsel asked a second question assuming the same

limitations as the second hypothetical, as well as requiring elevating
the leg on a daily basis or taking more than two scheduled breaks to
address pain.

The VE testified that there would be no jobs available

that such an individual could perform.
III.

(Tr. 47-48.)

DECISION OF THE ALJ

On June 16, 2011, the ALJ issued a decision unfavorable to the
plaintiff.

(Tr. 8-20.)

The ALJ found that plaintiff had not performed

substantial gainful activity since April 9, 2009, her alleged onset date.
The ALJ found that plaintiff had the severe impairments of depression,
anxiety, bipolar disorder, PTSD, emphysema, borderline intellectual
functioning, and panic disorder.

The ALJ found that plaintiff did not

suffer from an impairment or combination of impairments of a severity
that

meets

impairment.

or

medically

equals

the

required

severity

of

a

listed

(Tr. 10-15.)

The ALJ found that plaintiff had the RFC to perform light work, with
the limitation that it not require more than occasional contact with
coworkers, supervisors, and the public.
subjective

complaints

were

not

The ALJ found that plaintiff's

credible

conflicted with the ALJ's RFC assessment.

to

the

extent

that

they

(Tr. 15-16.)

The ALJ found that plaintiff's RFC precluded her from performing her
PRW, but that there were other jobs available in the national economy
-6-

that she could perform.
disabled.

Therefore, the ALJ found that plaintiff was not

(Tr. 18-20.)

IV.

GENERAL LEGAL PRINCIPLES

The court’s role on judicial review of the Commissioner’s final
decision is to determine whether the Commissioner’s findings comply with
the relevant legal requirements and is supported by substantial evidence
in the record as a whole.
Cir.

2009).

Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th

“Substantial evidence is less than a preponderance, but is

enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.”

Id.

In determining whether the evidence is

substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.

Id.

As long as substantial evidence

supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is
unable to perform any substantial gainful activity due to a medically
determinable physical or mental impairment that would either result in
death or which has lasted or could be expected to last for at least
twelve

continuous

months.

42

U.S.C.

§§

423(a)(1)(D),

(d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d 935, 942 (8th Cir. 2009).

A

five-step regulatory framework is used to determine whether an individual
qualifies for disability.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);

see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the
five-step process); Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not
currently engaged in substantial gainful activity, (2) she suffers from
a severe impairment, and (3) her disability meets or equals a listed
impairment.

Pate-Fires, 564 F.3d at 942.

If the claimant does not

suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five.

Id.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform
-7-

her PRW.

Id.

The claimant bears the burden of demonstrating she is no

longer able to return to his PRW.

Id.

If the Commissioner determines

the claimant cannot return to PRW, the burden shifts to the Commissioner
at Step Five to show the claimant retains the RFC to perform other work.
Id.
V. DISCUSSION
Plaintiff argues the ALJ erred in failing to give proper weight to
the opinion of her treating psychiatrist and in failing to recontact her
treating medical care provider.
1.

Opinion of Treating Psychiatrist Dr. Jyothi Mandava
Plaintiff argues that the ALJ should have given greater weight to

treating psychiatrist Dr. Mandava’s opinion.

She contends that Dr.

Mandava's opinion is consistent with her lengthy course of treatment and
her complaints to her healthcare providers.

The court disagrees.

The ALJ is required to assess the record as a whole to determine
whether treating physicians' opinions are inconsistent with substantial
evidence on the record.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);

Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012).

A treating

physician's opinion is generally given controlling weight, but is not
inherently entitled to it.
Cir. 2006).

Hacker v. Barnhart, 459 F.3d 934, 937 (8th

See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

An ALJ may

elect under certain circumstances not to give controlling weight to
treating

doctors’

opinions.

A

physician's

statement

that

is

not

supported by diagnoses based on objective evidence will not support a
finding of disability.

Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir.

2003).
The regulations specify the factors that the ALJ must consider when
determining the weight to assign to a medical opinion.
404.1527(c), 416.927(c).

20 C.F.R. §§

The ALJ must consider whether the medical

source treated or examined the claimant, the length of the treatment
relationship, if any, the source's area of medical specialization, the
extent to which the opinion was supported by objective medical evidence,
whether it was consistent with other evidence of record, and "other
-8-

factors."

Id.

In addition, a statement by a medical source that a

claimant is "disabled" or "unable to work" is not a "medical opinion" but
an issue reserved to the Commissioner.

See 20 C.F.R. §§ 404.1527(d),

416.927(d).
In this case, Dr. Mandava opined that plaintiff was psychiatrically
unstable, that she was disabled for the next twelve months, and that she
was homebound due to her symptoms.

The ALJ found the veracity of Dr.

Mandava's statement questionable and declined to accept it.
The ALJ did not err in declining to give Dr. Mandava’s opinion
controlling weight.

The ALJ discounted Dr. Mandava's opinion, in part,

noting that plaintiff saw Dr. Mandava on only four occasions between
February 2009 and April 2010.

(Tr. 18, 314-15, 317-18.)

While the ALJ

acknowledged that plaintiff's lack of Medicaid coverage may have played
a role in limiting the amount of treatment she received, the ALJ also
noted that the record evidence demonstrated that when plaintiff did have
Medicaid coverage, she did not seek care, calling into question the
severity of her condition, as well as her motivation.

(Tr. 18.)

Dr. Mandava's own records also do not support her opinion that
plaintiff was disabled and housebound.

At plaintiff’s February 25, 2009

office visit, Dr. Mandava noted that plaintiff had last seen her two
years earlier.
assigned

a

GAF

She diagnosed bipolar-depression and cocaine abuse, and
score

of

55.

Plaintiff

was

not

currently

medication, and Dr. Mandava prescribed Lexapro and Topamax.

taking

(Tr. 317-

19.)
At plaintiff’s April 1, 2010 visit, Dr. Mandava noted that she had
not seen plaintiff in a year.

Plaintiff had not been taking medication

for the past 10 months because she no longer had health insurance.

She

restarted plaintiff on Lexapro and Topamax. On April 30, 2010, plaintiff
saw Dr. Mandava again with complaints of panic attacks and difficulty
breathing.

Dr. Mandava increased plaintiff's Lexapro.

By June 2010,

she was not having panic attacks, was still a “little depressed,” and was
getting married shortly.

(Tr. 314-15, 468.)

Dr. Mandava's opinion is also inconsistent with the record as a
whole.

An ALJ may discount, or completely reject, the opinion of a

treating physician if it is inconsistent with the record as a whole. See
-9-

McCoy v. Astrue, 648 F.3d 605, 616 (8th Cir. 2011). The ALJ specifically
noted that there was no support in the record evidence for Dr. Mandava's
opinion that plaintiff was homebound due to her symptoms.

(Tr. 18, 276,

314-18, 465-68.)
Dr. Mandava’s opinion is also inconsistent with Dr. Toll’s opinion
that plaintiff had moderate restriction of activities of daily living,
in maintaining social functioning, and in maintaining concentration,
persistence, or pace, and no episodes of decompensation.

Dr. Toll also

opined that plaintiff's mental health had improved since she returned to
treatment and assessed a GAF score of 60.

Dr Toll found plaintiff

not

credible because the extremes plaintiff described in her function report
did not correspond with the information in her file.

(Tr. 320-31.)

Dr. Mandava’s opinion is also inconsistent with Dr. Toll’s Mental
RFC Assessment that plaintiff had no marked limitations but had moderate
limitations in multiple categories.

Dr. Toll opined that the cumulative

effect of plaintiff's limitations would restrict her to performing simple
work and that she could make simple work related decisions.

He opined

that due to plaintiff's panic disorder in response to interactions with
others, she should avoid work environments that require close and intense
relationships with others.

(Tr. 320-34.)

Finally, nothing in Dr. Lipsitz's report suggests that plaintiff had
greater

limitations

determination.

than

those

set

forth

by

Significantly,

Dr.

Lipsitz

the
did

ALJ
not

in
opine

his
as

RFC
to

plaintiff's RFC. He did, however, highlight plaintiff's need for ongoing
psychological treatment combining medication with individual therapy.
(Tr. 533-36.)

Dr. Lipsitz’s report supports the ALJ's conclusion that

plaintiff’s mental disorders were under good control when she was
compliant with medication. It is also consistent with records from
Volunteers in Medicine which state that plaintiff had "good control" on
medication.

(Tr. 16, 527-36.)

The ALJ also properly gave no weight to Dr. Mandava's opinion that
plaintiff was disabled. See House v. Astrue, 500 F.3d 741, 745 (8th Cir.
2007) (“treating physician's opinion that a claimant is disabled or
cannot be gainfully employed receives no deference because it invades the

-10-

province

of

the

Commissioner

to

make

the

ultimate

disability

determination”).
The court concludes that substantial evidence supports the ALJ's
finding that Dr. Mandava's opinion was not entitled to the weight
ordinarily accorded that of a treating source.
2.

Failure to Recontact Treating Physician
Plaintiff next argues that the ALJ erred in failing to recontact her

treating physician.

Although plaintiff does not identify the doctor to

whom she is referring, the court will assume plaintiff is referring to
Dr. Mandava.
An ALJ has a duty to fully develop the record, even when the
claimant is represented by an attorney. Snead v. Barnhart, 360 F.3d 834,
838 (8th Cir. 2004).

An ALJ should recontact a treating or consulting

physician if a critical issue is undeveloped. See Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005).

The ALJ is not required to recontact any

physician whenever he rejects that physician's opinion.
Barnhart, 459 F.3d 934, 938 (8th Cir. 2006).
order

medical

examinations

and

tests

only

See Hacker v.

“The ALJ is required to
if

the

medical

records

presented to him do not give sufficient medical evidence to determine
whether the claimant is disabled.”

Barrett v. Shalala, 38 F.3d 1019,

1023 (8th Cir. 1994).
Plaintiff does not state how recontacting Dr. Mandava--or any other
medical source--would assist her case.
issue

is

undeveloped.

Because

the

Nor does she state what critical
record

evidence

as

presently

constituted provides a sufficient basis for the ALJ's decision, the court
finds no error.

-11-

III.

CONCLUSION

For the reasons set forth above, the court finds that the decision
of the ALJ is supported by substantial evidence in the record as a whole
and

is

consistent

with

the

applicable

law.

The

decision

Commissioner of Social Security is affirmed.
An appropriate Judgment Order is issued herewith.

/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on January 16, 2013.

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of

the