Gordon v. Astrue

Filing 25

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed, and Plaintiff's Complaint is dismissed with prejudice.A separate Judgment in accordance with this Memorandum and Order isentered this same date. Signed by District Judge Henry E. Autrey on 2/24/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RONALD S. GORDON,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:11CV2237 HEA

OPINION, MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner's final decision denying Plaintiff’s applications 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 of the Act, 42
U.S.C. §§ 1381, et seq, in which he claimed he was disabled because of severe
depression with anxiety, fatigue and bipolar disorder. After a hearing, an
Administrative Law Judge (ALJ) concluded that Plaintiff was not disabled.
Because the Court finds that the ALJ committed no legal error and his decision was

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

based on substantial evidence on the record as a whole, the decision is affirmed.
Procedural History
Plaintiff filed his applications for disability insurance benefits on August
17,2006 and on September 7, 2006, he protectively filed his application for
Supplemental Security Income, alleging a disability onset date of January 16, 2006.
On October 18, 2006, the Social Security Administration denied his claim for
benefits. Upon Plaintiff’s request, an administrative hearing was held before an
ALJ on August 1, 2008, at which Plaintiff, his wife and a vocational expert
testified. On September 16, 2008, the ALJ issued a decision denying Plaintiff’s
claim for benefits, finding Plaintiff able to perform work in the national economy
such as a picking table worker and cleaning worker. On August 24, 2009, the
Appeals Council denied Plaintiff’s request for review of the ALJ's decision.
Plaintiff appealed to this Court and simultaneously, filed a new claim. On May 5,
2010, another ALJ determined that Plaintiff became disabled on September 17,
2008. On February 28, 2011, this Court remanded the original claim to the ALJ,
limiting the scope of review to the period from January 16, 2006 through
September 17, 2008. On September 26, 2011, Plaintiff appeared and testified at a
hearing before the ALJ. On October 25, 2011, the ALJ denied Plaintiff’s
applications. The Appeals Counsel declined to review the remanded decision
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under the exceptions ruled. The ALJ's determination thus stands as the final
decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, Plaintiff contends that the ALJ
committed legal error by wrongly discounting the opinion of Plaintiff’s primary
doctor, Dr. Armbruster and the psychological evaluation of Dr. Lipsitz. Plaintiff
further argues that the ALJ erred in failing to include reliability elements in his
RFC assessment. Finally, Plaintiff argues that the ALJ erred in omitting Plaintiff’s
limitation on concentration, persistence and pace from the hypothetical posed to the
VE. Plaintiff requests that the final decision be reversed and that he be awarded
benefits, or that the matter be remanded for further consideration. For the following
reasons, the decision of the Commissioner will be affirmed.
Testimonial Evidence Before the ALJ
At the hearing on September 26, 2011, Plaintiff testified in response to
questions posed by the ALJ and counsel.
At the time of the hearing, Plaintiff was fifty one. He has a couple of years
of college in criminal justice and a year of trade school for HVAC. Plaintiff was
6'1" and weighed 260 pounds. He was currently receiving benefits. Plaintiff
testified that he last worked at McCormack Baron Ragan, a realty company as a
maintenance mechanic in 2005. He had worked for them for about eight years. He
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stopped working because he couldn’t function. He became very tired and lethargic.
Plaintiff testified that he saw Dr. Armbruster, a family physician, for
depression. Plaintiff believed that Dr. Armbruster recommended he see the
psychiatrist Plaintiff saw, Dr. Ahmad. Plaintiff testified that he later developed an
addiction to Percocet, and then heroin. Dr. Ahmad sent him to a treatment
program. Plaintiff later went to Valley Hope treatment center. He left without
staying the entire recommended time. Plaintiff testified that he used his wife’s
Percocet and that he got his heroin from an old friend. Plaintiff had recently been
to St. Mary’s Hospital for detox. Dr. Ahmad began questioning Plaintiff as to his
genuineness and whether he was really just seeking drugs. Plaintiff also testified
that he had been treated for anxiety. In 2006, Plaintiff had had hallucinations. He
couldn’t sleep well. Plaintiff injured his rotator cuff from a karate injury.
Dr. Magrowshi, a vocational expert, testified at the hearing in response to
questions posed by the ALJ. The ALJ asked him to assume an individual
restricted to semiskilled to skilled, light work during the time period in question,
able to stand on his feet the better part of a day standing and walking, could lift
nothing heavier than 20 pounds, occasionally, 10 pounds frequently.
The VE testified that such a person could perform work as a picking-table
worker, and cleaning worker, of which significant numbers of jobs exist in the
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national economy.
The ALJ found that Plaintiff had not engaged in substantial gainful activity
since January 16, 2006, the alleged onset date. The ALJ found Plaintiff's residuals
of a right shoulder injury with tendinitis, major depression, and substance abuse to
be severe impairments, but that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled an impairment listed in
20 CFR Part 404, Subpart P, Appendix 1. The ALJ determined that Plaintiff had
the RFC to perform the exertional demands of light work except that he was
restricted to unskilled jobs, simple instructions, involving low stress and limited
social interaction, and was unable to maintain a reliable work presence. The ALJ
found Plaintiff use unable to perform any past relevant work. Considering
Plaintiff's age, education, work experience, and RFC, the ALJ determined that
Plaintiff was not able to perform jobs that exist in significant numbers in the
national economy, considering Plaintiff’s substance abuse. Absent the substance
abuse, Plaintiff’s remaining limitations would continue to have a severe
impairment or combination of impaiments, but they would not meet or equal any of
the listed impairments. Absent the substance abuse, the ALJ found that Plaintiff
would have the RFC to perform light work with the ability to lift 20 pounds
occasionally, 10 pound frequently, and limited to unskilled jobs involving simple
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instructions, low stress and limited social interaction. Specifically, mail clerk and
cleaning worker. The ALJ thus found Plaintiff not to be under a disability prior to
September 17, 2008.
Discussion
To be eligible for supplemental security income under the Social Security
Act, Plaintiff must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir.2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552,
555 (8th Cir.1992). 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 which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 1382c(a)(3)(A). An individual will be declared disabled
“only if his physical or mental impairment or impairments are of such severity that
he 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.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.
137, 140–42 (1987). The Commissioner begins by deciding whether the claimant is
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engaged in substantial gainful activity. If the claimant is working, disability
benefits are denied. Next, the Commissioner decides whether the claimant has a
“severe” impairment or combination of impairments, meaning that which
significantly limits her ability to do basic work activities. If the claimant's
impairment is not severe, then she is not disabled. The Commissioner then
determines whether the claimant's impairment meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If so, the claimant is
conclusively disabled. At the fourth step, the Commissioner establishes whether the
claimant can perform her past relevant work. If the claimant can do so, she is not
disabled. Finally, the Commissioner evaluates various factors to determine whether
the claimant is capable of performing any other work in the economy. If not, the
claimant is declared disabled and becomes entitled to disability benefits.
In cases involving mental impairments, the Commissioner undergoes an
additional evaluation process to determine the severity of such impairment(s). 20
C.F.R. § 416.920a. Specifically, the Commissioner rates the degree of functional
loss the claimant suffers as a result of the impairment in the areas of daily living;
social functioning; concentration, persistence or pace; and episodes of
decompensation. 20 C.F.R. § 416.920a(c)(3). If the mental impairment is found to
be severe, the Commissioner then determines if it meets or equals a listed mental
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disorder. 20 C.F.R. § 416.920a(d)(2). If the severe impairment does not meet or
equal a listed mental disorder, the Commissioner proceeds to perform an RFC
assessment. 20 C.F.R. § 416 .920a(d)(3).
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir.2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir.2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner's findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir.2007)
(internal quotation marks and citation omitted). “Substantial evidence on the record
as a whole ... requires a more scrutinizing analysis.” Id. (internal quotation marks
and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1. The credibility findings made by the ALJ.
2. The plaintiff's vocational factors.
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3. The medical evidence from treating and consulting physicians.
4. The plaintiff's subjective complaints relating to exertional and non-exertional
activities and impairments.
5. Any corroboration by third parties of the plaintiffs impairments.
6. The testimony of vocational experts when required which is based upon a proper
hypothetical question which sets forth the claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585–86 (8th
Cir.1992) (internal citations omitted).
The Court must also consider any evidence that fairly detracts from the
Commissioner's decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d
1047, 1050 (8th Cir.1999). However, even though two inconsistent conclusions
may be drawn from the evidence, the Commissioner's findings may still be
supported by substantial evidence on the record as a whole. Pearsall, 274 F.3d at
1217 ( citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000)). “[I]f there is
substantial evidence on the record as a whole, we must affirm the administrative
decision, even if the record could also have supported an opposite decision.”
Weikert v.. Sullivan, 977 F.2d 1249, 1252 (8th Cir.1992) (internal quotation marks
and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977
(8th Cir.2003).
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In 1996, Congress eliminated alcoholism or drug addiction as a basis for
obtaining social security benefits. See Kluesner v. Astrue, 607 F.3d 533, 537 (8th
Cir.2010). “An individual shall not be considered disabled for purposes of this title
if alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner's determination that the individual is disabled.”
42 U.S.C. § 1382c(a)(3)(J). The Regulations set out a two-step process in cases
involving evidence of substance abuse. First, the ALJ must determine if the
claimant's symptoms, regardless of cause, constitute a disability. Kluesner, 607
F.3d at 537; 20 C.F.R. § 416.935(a). If the ALJ finds a disability and evidence of
substance abuse, the next step is to determine whether the disability would exist in
the absence of the substance abuse. Kluesner, 607 F.3d at 537. As such, the ALJ's
finding of disability “is, in effect, a ‘condition precedent’ to applying the special
rule on alcoholism and drug addiction.” Frank S. Bloch, Bloch on Social Security §
3.39 (2003), cited approvingly in Brueggemann v. Barnhart, 348 F.3d 689, 693
(8th Cir .2003). See also Fastner v. Barnhart, 324 F.3d 981, 986 (8th Cir .2003)
(“Generally, a determination under ... § 416.935(b) is only necessary if the ALJ has
found that the sum of that individual's impairments would otherwise amount to a
finding of disability.”).
Here, upon consideration of all of the effects of Plaintiff's symptoms,
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regardless of cause and including those attributable to Plaintiff's opiate use, the
ALJ determined that Plaintiff was not disabled. Absent a finding of disability, the
ALJ was not required to assess the materiality of Plaintiff's substance abuse or
addiction under § 416.935. Fastner, 324 F.3d at 986.
Discounting Opinions of Dr. Armbruster and Dr. Lipsitz
As his first point, Plaintiff argues that the ALJ erred in wrongly discounting
the opinion of Dr. Armbruster and Dr. Lipsitz. Plaintiff claims that the ALJ’s
determination that Dr. Armbruster’s determination of fatigue due to medication and
the resulting need for naps and breaks was faulty because there was no evidence
Plaintiff ever required adjustments in his medication. He argues that his
medications were changed many times by all of his doctors as they made
adjustments for continued depression, pain and fatigue. There are, however, no
indications that the medications caused significant side effects which would cause
the limitations placed on Plaintiff by Dr. Armbruster which would require naps and
breaks because of the medication, even with the changes throughout Plaintiff’s
treatment.
The inconsistencies found by the ALJ are clearly present. Although Plaintiff
argues that the more restrictive assessment from Dr. Armbruster in 2008 from 2007
is based on Plaintiff’s continued deterioration, Dr. Armbruster failed to set out the
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reasons for her limitations. Plaintiff’s argument is clearly speculative; it is not
based on Dr. Armbruster’s specific finding that Plaintiff’s condition worsened
because of medically ascertainable causes.
With respect to Dr. Lipsitz, the ALJ gave some credit to Dr. Lipsitz’s
medical source statement only to the extent that they would represent Plaintiff’s
condition with substance abuse considered. Plaintiff argues that the ALJ did not
acknowledge that the medication in Plaintiff’s system was prescribed at the time by
Dr. Ahmad. This, however, was not the sole factor the ALJ considered in finding
Plaintiff’s substance abuse was a factor. Plaintiff was not willing to pursue
recommended treatment modalities, he continued to take his wife’s medication
despite consistent advice not to, and Dr. Thompson noted that Plaintiff exhibited
drug-seeking behavior. Dr. Ahmad consistently reported opiate-dependence.
RFC
A claimant's RFC is the most an individual can do despite the combined
effects of all of his or her credible limitations. See 20 C.F.R. § 404.1545. An ALJ's
RFC finding is based on all of the record evidence, including the claimant's
testimony regarding his symptoms and limitations, the claimant's medical treatment
records, and the medical opinion evidence. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir.2010); see also 20 C.F.R. § 404.1545; Social Security Ruling (SSR)
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96–8p. An ALJ may discredit a claimant's subjective allegations of disabling
symptoms to the extent they are inconsistent with the overall record as a whole,
including: the objective medical evidence and medical opinion evidence; the
claimant's daily activities; the duration, frequency, and intensity of pain; dosage,
effectiveness, and side effects of medications and medical treatment; and the
claimant's self-imposed restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir.1984); 20 C.F.R. § 404.1529; SSR 96–7p.
When analyzing a claimant's subjective complaints of pain, the ALJ must
consider the five factors from Polaski v. Heckler: (1) the claimant's daily activities;
(2) the duration, frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of medication; and
(5) functional restrictions. See 739 F.2d 1320, 1322 (8th Cir.1984); see also 20
C.F.R. §§ 404.1529, 416.929. “The ALJ [is] not required to discuss methodically
each Polaski consideration, so long as he acknowledge[s] and examine[s] those
considerations before discounting [the claimant's] subjective complaints.” Lowe v.
Apfel, 226 F.3d 969, 972 (8th Cir.2000). “Because the ALJ [is] in a better position
to evaluate credibility, we defer to his credibility determinations as long as they
[are] supported by good reasons and substantial evidence.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir.2006).
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Here, the ALJ did rely on some medical evidence in determining Plaintiff’s
RFC. The ALJ in making his RFC determination considered the entire record,
including Plaintiff’s medical records, Plaintiff’s testimony, and the conflicts
between the two, and the medical opinions of record.
Plaintiff’s medical records support the ALJ’s RFC determination that absent
substance abuse, Plaintiff could perform unskilled work. For instance, Plaintiff was
prescribed no assistive devices, he did not complete programs for detox, he
continued to use his wife’s medicine and exhibited drug-seeking behavior. There is
nothing in the record to explain the difference in Dr. Armbruster’s 2007 and 2008
evaluation.
“Failure to follow a prescribed course of remedial treatment without good
reason is grounds for denying an application for benefits.” Roth v. Shalala, 45 F.3d
279, 282 (8th Cir.1995). Before a claimant is denied benefits because of a failure to
follow a prescribed course of treatment, the ALJ must examine the circumstances
surrounding such failure and determine on the basis of the evidence of record
whether the prescribed treatment would restore the claimant's ability to work or
sufficiently improve her condition. Burnside v. Apfel, 223 F.3d 840, 843–44 (8th
Cir.2000); 20 C.F.R. § 416.930(a).

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The ALJ’s reliance on Plaintiff’s treatment notes, his own testimony, and in
addition to his continued diagnosis of drug abuse, and unable to perform any kind
of work of constitutes substantial evidence supporting the ALJ’s RFC
determination.
The ALJ discussed his reasons for his conclusions. Because the ALJ
properly applied Polaski and provided valid reasons for discounting the
assessment, the Court finds the ALJ did not err.
VE
Plaintiff argues that the ALJ formulated the hypothetical in an incorrect way.
The hypothetical posed was in terms of “simpler types of jobs in a low-stress
environment. Plaintiff argues that the ALJ was required to present the hypothetical
expressly to limitations on concentration, persistence, and pace in order to focus
the VE’s attention on the limitations. The Court is dissuaded that the VE, an expert
in vocations, was not focused on the types of limitations imposed on Plaintiff.
Clearly this terminology sufficiently describes concentration, persistence and pace.
Simpler deals with concentration and persistence; low stress, pace.
Conclusion
For all of the foregoing reasons, the Commissioner's decision that Plaintiff
was not under a disability since January 17, 2006, is affirmed. Because the
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Commissioner committed no legal error and there is substantial evidence on the
record as a whole to support the Commissioner's decision, the Court may not
reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court might have
reached a different conclusion. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir.2001);
see also Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.2011).
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed, and Plaintiff's Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 22nd day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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