King v. Astrue

Filing 26

MEMORANDUM OPINION motion is IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Shirley P. Mensah on 1/15/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NANETTE KING,
Plaintiff.
vs.
MICHAEL J. ASTRUE,
Commissioner of
Social Security Administration,
Defendant.

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No. 4:11CV2184 SPM

MEMORANDUM OPINION
This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision of
Defendant Michael J. Astrue, the Commissioner of Social Security, denying the application of
Plaintiff Nanette King for disability insurance benefits under Title II of the Social Security 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. (the “Act”). For the reasons stated below, the
court affirms the Commissioner’s denial of Plaintiff’s application.
I.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, Nanette Sheree King, is a forty-eight year old widow whose husband passed
away in 2002 after six years of marriage. Before filing for disability, Plaintiff worked as an
office manager for her husband’s business until 2003 and then briefly worked as a cashier for a
Shop N Save. From November 2003 until April 2009, she worked as a loss prevention manager
for Macy’s. (Tr. 25-26, 212). Plaintiff claims she became unable to work in April 2009 due to
“severe headaches,” “anxiety attacks,” and “depression”. (Tr. 26-27). On September 21, 2009,

1

Plaintiff filed for disability benefits, citing problems related to depression and anxiety. (Tr. 111119, 154). That application was denied. (Tr. 40-41).
Plaintiff reapplied for benefits on May 20, 2010, citing bi-polar disorder, memory and
concentration problems, tremors, insomnia, and fatigue, in addition to major depression and
severe anxiety and social phobia. (Tr. 120-127, 128-131, 198). That application was also
denied. On July 13, 2011, following a hearing, Administrative Law Judge Randolph E. Schum
(the “ALJ”), found Plaintiff was not under a disability as defined by the Act. (Tr. 6-8). On
November 15, 2011, the Social Security Administration’s Appeals Council denied Plaintiff’s
request for review. (Tr. 1-3). Thus, the ALJ’s decision stands as the final decision of the
Commissioner.
II.
STANDARD OF JUDICIAL REVIEW
The court’s role in reviewing the Commissioner’s decision is to determine whether the
decision “‘complies with the relevant legal requirements and is supported by substantial evidence
in the record as a whole.’” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)).

“Substantial evidence is ‘less than

preponderance, but enough that a reasonable mind might accept it as adequate to support a
conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting Moore v.
Astrue, 572 F.3d 520, 522 (8th Cir. 2009)).

In determining whether substantial evidence

supports the Commissioner’s decision, the court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court “‘do[es] not
reweigh the evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations
regarding the credibility of testimony, as long as those determinations are supported by good
reasons and substantial evidence.’” Id. (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th
2

Cir. 2006)). “If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
III.
GENERAL LEGAL PRINCIPLES
The Social Security Act defines as disabled a person who is “unable 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 which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see
also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be “of such
severity that [the claimant] is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if
he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an individual claimant
qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v.
Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (discussing the five-step process). Steps One through
Three require the claimant to prove (1) he is not currently engaged in substantial gainful activity,
(2) he suffers from a severe impairment, and (3) his disability meets or equals a listed
impairment. Pate-Fires, 564 F. 3d at 942. If the claimant establishes these three steps and does
not suffer from a listed impairment or its equivalent, the Commissioner's analysis proceeds to
steps Four and Five. Id.
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Prior to Step Four, the ALJ must assess the claimant’s “residual functional capacity”
(“RFC”), which is “the most a claimant can do despite [his] limitations.” Moore v. Astrue, 572
F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. §§
404.1520(e), 416.920(e). At Step Four, the ALJ determines whether the claimant can return to
his past relevant work, by comparing the claimant’s RFC with the physical and mental demands
of the claimant’s past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),

416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past
relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next step.
Id. At Step Five, the ALJ considers the claimant’s RFC, age, education, and work experience to
determine whether the claimant can make an adjustment to other work in the national economy;
if the claimant cannot make an adjustment to other work, the claimant will be found disabled. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Id.; Brock v. Astrue, 674 F.3d 1062, 1064 (8th Cir. 2012).
IV.
THE ALJ’S DECISION
Using the foregoing analysis, the ALJ in this case concluded Plaintiff was not disabled at
Step Five. More specifically, the ALJ found that Plaintiff had the following severe impairments:
obesity, headaches, depression and anxiety. (Tr. 11). However, the ALJ found that Plaintiff did
not have an impairment or combination of impairments listed that are medically equal to one
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 12). The ALJ determined that
Plaintiff’s impairments prevented her from returning to her past relevant work.
4

However,

Plaintiff retained the RFC to perform light work except that she should not work in a setting that
includes constant/regular contact with the general public or perform work which includes more
than infrequent handling of customer complaints. She was able to understand, remember, and
carry out at least simple instructions and non-detailed tasks. (Tr. 13). The ALJ found that
Plaintiff’s impairments would not preclude her from performing work that exists in significant
numbers in the national economy, including work as a hospital products assembler, small parts
assembler, electronics assembler, and optical goods final assembler. (Tr. 17).
In appealing the Commissioner’s decision to this court, Plaintiff’s chief argument is that
the ALJ’s RFC determination is not supported by substantial evidence. More specifically,
Plaintiff argues there is no medical evidence to support the ALJ’s finding that Plaintiff has the
RFC to perform work day in and day out. See Pl’s Br., at 10-16. Plaintiff also argues that the
ALJ improperly discarded the opinion of Plaintiff’s treating physician, Dr. Tracy Fritz. Plaintiff
contends that, as a result of the aforementioned errors, the hypothetical question posed to the
vocational expert, on which the ALJ’s decision is predicated, erroneously failed to capture the
“concrete consequences” of Plaintiff’s impairment. See Pl’s. Br. at 16-17.
V.
DISCUSSION
A.

THE ALJ’S RFC DETERMINATION

Plaintiff contends that the ALJ’s RFC determination is not supported by “some” medical
evidence, as required by the Eighth Circuit in cases such as Singh v. Apfel, 222 F.3d 448 (8th Cir.
2000) and Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001). See Pl.’s Br. at 10-16. “The ALJ must
assess a claimant’s RFC based on all relevant, credible evidence in the record, ‘including the
medical records, observations of treating physicians and others, and an individual’s own
description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting
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McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Although the ALJ “bears the primary
responsibility for assessing a claimant's residual functional capacity based on all relevant
evidence,” a “claimant’s residual functional capacity is a medical question.” Lauer, 245 F.3d at
704 (8th Cir. 2001) (internal quotation marks omitted). Therefore, “some medical evidence”
must support the determination of the claimant’s RFC, and the ALJ should obtain medical
evidence that addresses the claimant’s “ability to function in the workplace[.]” Id.; see also
Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).
In this case, the ALJ determined that Plaintiff had the RFC to perform light work except
that she could not work in a setting that involved constant or regular contact with the general
public, or perform work that included more than infrequent handling of customer complaints.
The ALJ further determined that Plaintiff was able to understand, remember, and carry out at
least simple instructions and non-detailed tasks.

(Tr. 13).

Plaintiff argues that this

determination, which by implication means Plaintiff is able to work day in day out, is
unsupported by any medical opinion evidence. I disagree.
1. THE ADMINISTRATIVE RECORD
The Administrative Record contains treatment notes from various providers who
examined and/or treated Plaintiff for her psychological complaints between 2008 and 2011.
a. Fenton Family Healthcare (Dr. Tonya Little and Dr. Tracy Fritz)
Plaintiff’s medical records reflect that Plaintiff sought treatment for anxiety and
depression at Fenton Family Healthcare beginning in January 4, 2008. In 2008, she was treated
primarily by Dr. Tonya Little, who saw her in January, February, March, June, and October of
2008.

(Tr. 236-250, 256-259, 264-267).

Dr. Little prescribed Wellbutrin,1 Lexapro,2 and

1

Wellbutrin is a brand name for the drug bupropion, which is used to treat depression.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695033.html
6

alprazolam.3 As of Plaintiff’s October 2008 visit with Dr. Little, Plaintiff was “doing well”
despite “some personal anxiety.” (Tr. 264).
Plaintiff began treating with Dr. Tracy Fritz at Fenton Family Healthcare on April 3,
2009. Plaintiff went to see Dr. Fritz for “worsening depressive symptoms,” citing stressors such
as work, financial issues, issues with the IRS following her spouse’s death, her father’s health,
and her living situation with her sister. (Tr. 268). During a visit on April 15, 2009, Dr. Fritz
noted that Plaintiff was under extreme stress at work and at home. (Tr. 289). Specifically,
Plaintiff indicated she needed to be the primary caretaker for her ill father since her mother had
recent cardiac problems.

Dr. Fritz made adjustments to Plaintiff’s medications and

recommended that Plaintiff receive “patient education” and take a leave of absence from work.
(Tr. 290).
Following a visit on May 11, 2009, Dr. Fritz indicated that Plaintiff was feeling a little
better after making some adjustments to her medication on her own but indicated Plaintiff was
“not doing well enough clinically to return to work at [sic] Loss Prevention Manager.” Dr. Fritz
made additional adjustments to Plaintiff’s prescriptions and extended her leave for an additional
month, to June 15th. (Tr. 304).
During a visit on May 26, 2009, Dr. Fritz indicated that Plaintiff had made some
improvements, particularly with respect to her anxiety, but indicated that she would “extend off
work date until July 15, 2009, based on continued depression which has not responded fully to
treatment.” (Tr. 309).

2

Lexapro is a brand name for the drug escitalopram, which is used to treat depression and
generalized anxiety disorder. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html
3
Alprazolam is a benzodiazepine and is used to treat anxiety disorders and panic disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684001.html
7

On June 30, 2009, Dr. Fritz noted that Plaintiff had switched from Prozac to Pristiq4 and
was “feeling much better.” Plaintiff was exercising at a gym daily and felt it helped her
depression. Although Plaintiff exhibited a depressed mood, her behavior was normal and her
judgment and thought content were normal. Dr. Fritz planned to continue Plaintiff on her current
medication and reassess in two weeks. Dr. Fritz noted “Patient does not appear able to return to
work at this time as loss prevention agent. Will reassess at follow up. Encouraged continuation
of healthy diet and exercise program.” (Tr. 317-318).
On July 14, 2009, Dr. Fritz noted Plaintiff felt “a little bit better on the Pristiq. Her mood
is not so low.” Upon physical examination, Dr. Fritz found her psychiatric condition to be
“mildly improved overall.” However, Dr. Fritz found Plaintiff “seems to be developing some
activating symptoms” and concluded she “meets criteria for bipolar affective disorder.” Dr. Fritz
prescribed Topamax5 “as [a] mood stabilizer” and referred Plaintiff “to psychiatry for further
medical management.” Dr. Fritz concluded, “Patient is not able to return to work at this time
based on bipolar depression not adequately treated.” Dr. Fritz recommended evaluation by
psychiatry for assessing Plaintiff’s return to work, and Plaintiff was instructed to schedule her
referral to psychiatry. (Tr. 322-325).
On August 4, 2009, Dr. Fritz noted that Plaintiff had been taking Pristiq and feeling better
since starting it. Although Topamax was prescribed, Plaintiff had not picked it up, citing
“insurance problems.” Plaintiff was having some trouble sleeping due to anxious thoughts but
was exercising daily and eating well. Upon examination, Dr. Fritz found Plaintiff’s mood and
affect, behavior, judgment and thought content all to be “normal.” (Tr. 328-329).
4

Pristiq is a brand name for desvenlafaxine, which is a drug used to treat depression.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a608022.html
5
Topamax is a brand name for topiramate, which is a drug used to treat seizures to prevent
migraine headaches. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697012.html
8

On September 4, 2009, Dr. Fritz noted Plaintiff was scheduled to see the new psychiatrist
the last week in September. Dr. Fritz also noted Plaintiff was taking her medication and felt like
her mood was “stable” although she was still down in terms of her mood overall. Dr. Fritz
“encouraged” Plaintiff to “establish care as planned with psychiatry” and made some
adjustments to her medication. (Tr. 333-334).
On October 16, 2009, Dr. Fritz noted that Plaintiff had been seen by Dr. Farida Farzana, a
psychiatrist, who was “following closely with her.” Dr. Fritz noted Plaintiff was due to see Dr.
Farzana again “next month” and noted Dr. Farzana’s recommendations for adjusting Plaintiff’s
medication. Upon physical examination, Dr. Fritz found Plaintiff’s behavior, judgment, and
thought content to be “normal” and Plaintiff’s mood “anxious” but “pleasant.” Dr. Fritz made
the recommended adjustments to Plaintiff’s medication. Dr. Fritz also indicated that Plaintiff
was “[n]ot able to return to work,” recommended follow up with the psychiatrist as planned, and
stated, “will await clinical assessment on new regimen and reassess work status.” (Tr. 382-383).
Plaintiff saw Dr. Fritz for follow up visits on November 23, 2009, December 21, 2009,
and February 1, 2010. The treatment records from those visits make no further mention of
treatment with Dr. Farzana or any other psychiatrist. As set out more fully below, the evidence
is that Plaintiff did not pursue further treatment from Dr. Farzana. The treatment records from
those visits are also silent about whether Dr. Fritz felt Plaintiff could or could not return to work.
(Tr. 387-388, 396-397, 401-402).
What the treatment notes from the November, December and February visits do indicate
is that, at each visit, Dr. Fritz found Plaintiff’s depressive symptoms to be “chronic” problems
that are “worsened by stress” and “relieved by medications,” with the treatment providing
“moderate relief.” At the November and December 2009 visits, Dr. Fritz found Plaintiff’s

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behavior, judgment, and thought content “normal,” but her mood “depressed.” At the February
2010 visit, Dr. Fritz found Plaintiff’s behavior, judgment, thought content, and mood were all
“normal.” (Tr. 387-388, 396-397, 401-402).
In addition to Dr. Fritz’s treatment notes, the Administrative Record also contains a
January 11, 2010 medical disability certificate from Macy’s filled out by Dr. Fritz (the
“Disability Certificate”). The form was a check-the-box-type form in which Dr. Fritz indicated
that (i) Plaintiff had “an impairment which affects [her] ability to perform one or more major life
activity; (ii) Plaintiff was “limited by [her] condition from performing one or more major life
activity” and (iii) the limitation “affect[s] [Plaintiff’s] ability to perform at work.” (Tr. 216).
Although the form asked Dr. Fritz to identify in narrative form the “major life activity(ies) which
[the doctor] consider to be limited” and to “explain briefly how the [Plaintiff] is limited at work
as a result,” Dr. Fritz offered no such narrative. (Tr. 217).
Dr. Fritz indicated that Plaintiff was not “currently capable of performing all the essential
functions of . . . her position without any special accommodations.” Dr. Fritz further indicated
that there were “no effective accommodations appropriate” to enable Plaintiff to perform the
essential functions of her job. Finally, Dr. Fritz indicated on the form that she was unable to give
a foreseeable return date, as “the leave is indefinite.” (Tr. 217).
b. Dr. Farida Farzana
Pursuant to Dr. Fritz’s referral of Plaintiff to a psychiatrist, on September 24, 2009,
Plaintiff saw psychiatrist Dr. Farida Farzana, with Psych Care Consultants.

Dr. Farzana

diagnosed Plaintiff with bipolar II disorder and hyperactivity and assessed Plaintiff with a Global
Assessment Functioning (“GAF”) score of 30.6 Dr. Farzana noted Plaintiff had a blunted and
6

The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool wherein
an examiner is to “[c]onsider psychological, social, and occupational functioning on a
10

flat affect and a depressed and anxious mood, but found Plaintiff also had an intact thought
process, no hallucinations, and intact memory, concentration, and insight/judgment. Dr. Farzana
recommended Pristiq, Topamax, and Xanax (alprazolam) and scheduled a follow-up
appointment within four weeks. (Tr. 228-231). However, Plaintiff testified that she only visited
Dr. Farzana once and could not recall why she did not return to Dr. Farzana. (Tr. 28).
c. Grace Hill (Brenda Bush, LNP and John Rajeev, LCSW) 

Plaintiff was seen at Grace Hill Clinic on April 8, 2011, by Nurse Practitioner Brenda
Bush for GERD and depression. After that visit, Nurse Bush made a behavioral health referral,
and Plaintiff was told to continue with Pristiq. (Tr. 446-447).
On May 2, 2011, Plaintiff was seen by Mr. John Rajeev, LCSW, for depression. Mr.
Rajeev diagnosed Plaintiff with major depressive affective disorder, recurrent episode severe
degree, without mention of psychotic behavior. Mr. Rajeev noted Plaintiff’s problems were
related to finances, housing, and occupation and assessed Plaintiff with a GAF score of 70.7 (Tr.
467-469).
Plaintiff saw Mr. Rajeev again on May 16, 2011. At that visit, Plaintiff reported that she
had started walking, gardening, and photography, which she enjoys. Plaintiff reported she was
“less depressed” and wanted to “continue to work on self-management goals.” Mr. Rajeev
diagnosed Plaintiff with Major depressive affective disorder and again related her problems to
hypothetical continuum of mental health-illness”; it does “not include impairment in functioning
due to physical (or environmental) limitations.” Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV), 32 (4th ed. 1994). A GAF score between 21 and 30 indicates “[b]ehavior
is considerably influenced by delusions or hallucinations OR serious impairment in
communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal
preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job,
home, or friends).
7
See Note 4, supra. A GAF score of 61-70 indicates “[s]ome mild symptoms (e.g., depressed
mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships.” DSM-IV 32.
11

finances, housing, and occupation. He assessed her GAF score as 70.8 (Tr. 470-471). Mr.
Rajeev’s plan for Plaintiff following the visit was for Plaintiff to continue with prescribed
medications and self-management goals and to start writing journals. (Tr. 470-471).
d.  Plaintiff’s Subjective Complaints
In addition to the foregoing treatment records, the Administrative Record also contained
Plaintiff’s testimony about her subjective complaints as well as a Third Party Function Report
submitted by Plaintiff’s friend, Frances Bunse.
Plaintiff testified that she gets tension headaches sometimes on a daily basis and has
actual migraines once every two or three months. (Tr. 28). When she does have tension
headaches, they last “almost all day,” roughly 16-18 hours out of the day. (Tr. 29).
Plaintiff also testified that she has a problem with stomach acid issues for which she takes
Ranitidine and Tums, which help. (Tr. 29). Roughly three to four times a month, Plaintiff’s
stomach problems are so severe that she suffers from chronic diarrhea that would interfere with
her work day. (Tr. 35).
Plaintiff testified that because of the anxiety and depression, she does not want to get out
of bed a lot of days, does not want to take a bath, and does not want to see friends or talk to
people. The anxiety and depression have also caused her to gain weight. (Tr. 29). Plaintiff
testified that although her doctor tried several different medications to treat her depression, she
had trouble finding one that worked. (Tr. 30). Plaintiff testified that she is no longer bathing and
changing clothes every day, has erratic eating habits, and has crying spells four to five times a
week that can last anywhere from a few minutes to an hour. (Tr. 32). Plaintiff indicated that her
crying spells are triggered by stress or nervousness induced by being around people. (Tr. 33).
8

It is unclear from the treatment notes whether Dr. Rajeev assessed Plaintiff’s GAF score at the
May 16th visit. The record states “Current GAF: 70 on 5/2/2011,” making it unclear whether
this was a new GAF score or merely a reference to the earlier visit.
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Plaintiff further testified that she has anxiety attacks two or three times in a week or
sometimes five times in a week. The episodes can last anywhere from an hour to four or five
hours. Plaintiff is treating her anxiety with alprazolam and sometimes has to take two pills
instead of one pill to control her anxiety. In addition to anxiety, Plaintiff suffers from sleeping
problems, which she also treats with alprazolam. (Tr. 31). Those sleeping problems include the
inability to fall asleep. (Tr. 33).
Due to her weight gain, Plaintiff has lower back pain and joint pain that she did not
previously suffer from. (Tr. 32). Ms. Bunse’s report was largely consistent with the subjective
complaints cited by Plaintiff. (Tr. 176-184).
2. THE ALJ’S RFC DETERMINATION WAS SUPPORTED BY “SOME” MEDICAL
EVIDENCE IN THE RECORD.
In support of his RFC determination, the ALJ considered the treatment records of Mr.
Rajeev, which included his GAF scores of 70, reflecting only mild psychiatric symptoms. (Tr.
15, 468, 471). Notwithstanding Plaintiff’s arguments to the contrary, the ALJ also considered
the treatment records of Dr. Fritz. Noting that Plaintiff began treatment for depression prior to
her alleged onset date of April 15, 2009, the ALJ found that Dr. Fritz’s treatment records,
together with records from other providers, reflect that Plaintiff’s depression was consistently
attributed to a number of situational stressors in her life, including work stress, financial
problems, her parents’ health problems, and tax problems that became known after her husband
passed away. (Tr. 14, 237, 243, 247, 264, 268, 289, 294, 303, 308).
The ALJ also noted, and Dr. Fritz’s treatment records reflect, that Plaintiff experienced
some improvement with medication adjustments and when the stressors in her life were removed
or minimized. (Tr. 14). As the ALJ correctly noted, “[i]f an impairment can be controlled by

13

treatment or medication, it cannot be considered disabling.” Roth v. Shalala, 45 F.3d 279, 283
(8th Cir. 1995) (quoting Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)).
The ALJ also noted that although Plaintiff received a referral for psychiatric treatment,
other than one visit with Dr. Farzana on September 24, 2009, Plaintiff failed to seek additional
care from a psychiatrist. Indeed, at the hearing, Plaintiff could provide no explanation for this
failure. (Tr. 28). As the Eighth Circuit has held, “[f]ailure to follow a prescribed course of
remedial treatment without good reason is grounds for denying an application for benefits.”
Roth, 45 F.3d at 283. In addition, the absence of any evidence of deterioration or change in
Plaintiff’s mental capabilities disfavors a finding of disability. See Roberts v. Apfel, 222 F.3d
466, 469 (8th Cir. 2000) (citing Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990)).
Taken as a whole, the medical evidence in the record supports a conclusion that
Plaintiff’s depressive symptoms, which first appeared to worsen in 2009, were either improving
or stabilizing by February 2010. Between February 2010 and March 2011, Plaintiff did not seek
any treatment for her depressive symptoms. (Tr. 14, 401, 467). In stark contrast to the GAF
score of 30 assessed by Dr. Farzana in September 2009, as of May 2011, Dr. Rajeev assessed
Plaintiff with a GAF of 70 and prescribed a plan for Plaintiff to continue “self-management
goals” and to start writing journals.
For all of the foregoing reasons, I find there was “some medical evidence” in support of
the ALJ’s determination that Plaintiff could perform work activity as long as it involved simple
tasks and did not require stressful activities such as frequent contact with the general public or
handling customer complaints.

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3. THE ALJ WAS NOT REQUIRED TO GIVE CONTROLLING WEIGHT TO DR. FRITZ’S
OPINIONS IN THE MEDICAL DISABILITY CERTIFICATE.
Plaintiff suggests that the Disability Certificate filled out by Dr. Fritz conclusively
establishes that Plaintiff’s conditions have rendered her incapable of engaging in any sustained
work activity. Plaintiff contends the ALJ erred by concluding that Dr. Fritz’s opinion was
limited to Plaintiff’s ability to return to her past work at Macy’s. Plaintiff further contends that
because the ALJ “discarded” Dr. Fritz’s opinions in the Disability Certificate, the record was
devoid of “some” medical evidence to support the RFC determination. See Pl.’s Br. at 13-16.
These arguments lack merit for several reasons.
First, the ALJ’s conclusion that Dr. Fritz’s opinion was confined to Plaintiff’s ability to
perform her past job is supported by substantial evidence.

Dr. Fritz’s treatment notes

consistently refer to job-related stress. In discussing whether Plaintiff could return to work, Dr.
Fritz consistently noted that Plaintiff would be returning to work as a loss prevention “manager”
or “agent.” (Tr. 304, 318). These pointed references to Plaintiff’s specific position, taken
together with the fact that (i) Dr. Fritz consistently tied Plaintiff’s symptoms to her job as a loss
prevention manager and (ii) the disability certificate specifically asked about Plaintiff’s ability to
perform her job a loss prevention manager, support the ALJ’s conclusion that Dr. Fritz’s opinion
was limited to Plaintiff’s past work.
Second, Dr. Fritz’s opinion in the Disability Certificate is not entitled to controlling
weight even if it can be construed as an opinion that Plaintiff was unable to perform any work.
Although a treating physician’s opinion is generally given controlling weight, it is not inherently
entitled to it. Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007); Hacker v. Barnhart, 459
F.3d 934, 937 (8th Cir. 2006). Statements by a treating physician that a claimant cannot be
gainfully employed “are not medical opinions but opinions on the application of the statute, a
15

task assigned solely to the discretion of the [Commissioner].” Nelson v. Sullivan, 946 F.2d 1314,
1316 (8th Cir. 1991). Indeed, the Eighth Circuit has held that although medical opinions are
relevant in determining precisely what claimant’s physical impediments are, they are “not
conclusive as to the ultimate question concerning whether the claimant’s injuries are so severe
that [s]he is prevented from doing productive work.” Nelson, 946 F.2d at 1316-17. See also 20
C.F.R. §§ 404.1527(d)(1),(3); 416.927(d)(1),(3) (no special significance is afforded to opinions
that a claimant is “disabled” or “unable to work”).
In addition, for a treating physician’s opinion to have controlling weight, it must be
supported by medically acceptable laboratory and diagnostic techniques and it must not be
“‘inconsistent with the other substantial evidence in [the] case record.’” Hacker, 459 F.3d at 937
(quoting 20 C.F.R. § 404.1527(d)(2)). See also Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir.
2007). It is the ALJ’s duty to resolve conflicts in the evidence, and the ALJ’s finding in that
regard should not be disturbed so long as it falls within the “available zone of choice.” See
Hacker, 459 F.3d at 937-938.
Here, the ALJ concluded that Dr. Fritz’s opinion in the Disability Certificate that Plaintiff
was “unable to work” was inconsistent with her own treatment notes. (Tr. 15). As discussed
above, Dr. Fritz described Plaintiff’s problems with anxiety and depression as intensifying in the
first three quarters of 2009 while she was dealing with a host of situational stressors. (Tr. 268,
289, 294, 308, 312, 317). However, Dr. Fritz also indicated that Plaintiff’s depression improved
with medication, and that her symptoms improved when she was not under as much stress. (Tr.
308, 317).
From November 2009 through her last appointment with Plaintiff on February 1, 2010,
Dr. Fritz found Plaintiff’s depressive symptoms to be “chronic” problems that are “worsened by

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stress” and “relieved by medications,” with the treatment providing “moderate relief.” At the
November and December 2009 visits, Dr. Fritz found Plaintiff’s behavior, judgment, and thought
content to be “normal” but her mood “depressed.” At the February 2010 visit, Dr. Fritz found
Plaintiff’s behavior, judgment, thought content, and mood all to be “normal.” (Tr. 387-388, 396397, 401-402). To the extent that Dr. Fritz’s opinions in the January 2010 Disability Certificate
can be construed as finding Plaintiff’s conditions rendered her incapable of performing any
work, the ALJ’s conclusion that it was inconsistent with Dr. Fritz’s own treatment records was
within the zone of choices available to the ALJ.
Finally, in formulating Plaintiff’s RFC, the ALJ thoroughly considered all of the evidence
of record regarding the effects of Plaintiff’s impairments on her ability to perform work-related
activities. For example, the ALJ noted that Plaintiff was caring for her ill parents during the
period she alleged she was disabled (Tr. 13-14, 289, 308). The Eighth Circuit has held that
complaints of disabling symptoms are inconsistent with the ability to serve as a primary
caregiver for others. See Brown v. Barnhart, 390 F.3d 535, 541 (8th Cir. 2004) (“The ALJ
considered testimony by Brown that seemed inconsistent with limitations caused by the kind of
pain Brown said she had, including that . . . she acted as the primary caregiver of her daughter
with cerebral palsy, helping her bathe and tending to her needs whenever the part-time assistant
was not present.”); Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (“[T]he ALJ
discounted Eichelberger’s complaints noting that she ceased employment at the same time she
became the primary care giver to her grandchild.”).
The ALJ also noted that despite alleging disabling levels of depression and anxiety,
Plaintiff did not require any emergency or inpatient treatment for her psychiatric impairments

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during the relevant period. (Tr. 14). The ALJ further noted that Plaintiff’s testimony that her
depressive condition resulted in poor hygiene was contrary to treatment records. (Tr. 15).
The RFC determination need only account for those impairments and limitations that the
ALJ determines are credible. See McGeorge v. Barnhart, 321 F.3d 766, 769 (8th Cir. 2003).
Based on all of the factors outlined above, the ALJ determined that, while Plaintiff had some
limitation of her RFC due to her mental impairments, the evidence as a whole did not support a
finding that her anxiety and depression were completely disabling. (Tr. 14-15). The ALJ’s
credibility determination and resulting RFC determination were well within the “zone of choice”
and should be affirmed. See Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011); Travis, 477
F.3d at 1042 (“This court will not substitute its opinion for the ALJ’s, who is in a better position
to gauge credibility and resolve conflicts in evidence.”).
B.

THE HYPOTHETICAL TO THE VOCATIONAL EXPERT

Plaintiff argues that the ALJ erred because his hypothetical question did not account for
all of her functional limitations. See Pl.’s Br. at 16-17. Although the hypothetical question must
set forth with reasonable precision the claimant’s impairments, it need only include those
impairments and limitations found credible by the ALJ. See Heino v. Astrue, 578 F.3d 873, 882
(8th Cir. 2009) (citing Pertuis v. Apfel, 152 F.3d 1006, 1007 (8th Cir. 1998)). As discussed
above, the ALJ found that Plaintiff had some credible symptoms but concluded the record did
not support a finding that her mental impairments imposed disabling limitations.
Specifically, the record showed that Plaintiff’s symptoms were associated largely with
situational stressors, including job stress, financial problems, and caring for her ill parents. Dr.
Fritz repeatedly indicated that Plaintiff’s depression and anxiety were partially controlled with
medication, and by February 2010, mental status examinations did not reveal any serious

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functional limitations. Despite the fact she had gone roughly one year without any treatment for
her psychiatric impairments, in May 2011, Plaintiff was assessed with a GAF score of 70,
reflecting only mild functional limitations. (Tr. 15, 467, 471). The ALJ accounted for Plaintiff’s
symptoms to the degree they were credible by incorporating a number of specific limitations in
the hypothetical question including that she was limited to work involving simple instructions
and non-detailed tasks, as well as no constant or regular contact with the general public or work
involving more than infrequent handling of customer complaints. (Tr. 16).
Because the hypothetical question included those impairments the ALJ found credible,
and excluded those he discredited for legally sufficient reasons, the vocational expert’s testimony
that Plaintiff could perform work existing in significant numbers was substantial evidence in
support of the ALJ’s determination. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011);
Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir. 2010).
VI.
CONCLUSION
For all of the foregoing reasons, the court finds the ALJ’s decision is supported by
substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of January, 2013.

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