Lacy v. Astrue

Filing 25

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief sought by plaintiff in her brief in support of complaint [# 19 ] is denied. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 12/31/12. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LINDA K. LACY,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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Case No. 4:12-CV-16 (CEJ)

MEMORANDUM AND ORDER

This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On March 31, 2009, plaintiff Linda Lacy filed an application for supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of
January 15, 2003. (Tr. 89). Later, plaintiff amended the onset date to March 31,
2009. (Tr. 114). After plaintiff’s application was denied on initial consideration (Tr.
46), she requested a hearing from an Administrative Law Judge (ALJ). See Tr. 53-54
(acknowledging request for hearing).
Plaintiff and counsel appeared for a hearing on February 26, 2010. (Tr. 18).
The ALJ issued a decision denying plaintiff’s application on July 6, 2010 (Tr. 9-17), and
the Appeals Council denied plaintiff’s request for review on November 2, 2011. (Tr.
1-4). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision. See
42 U.S.C. § 405(g).
II. Evidence Before the ALJ
A. Disability Application Documents

In her Disability Report (Tr. 115-127), plaintiff listed her disabling conditions as
diabetes, hypertension, loss of vision in both eyes, pain in both legs and arms, and
depression. She stated that she has difficulty sitting longer than a few minutes at a
time because of leg pain, and that her vision is deteriorating from diabetes. Plaintiff
listed her past employment as a waitress at a restaurant, a snack vendor at a ball
park, and a hotel housekeeping maid. She wrote that she was unemployed and had
not worked since 2005 because her poor vision prevents her from walking around.
Plaintiff reported taking the following medications: Caduet for high cholesterol,
Lisinopril and Toprol XL for high blood pressure, Novolin (insulin) for diabetes, and
Ranitidine for acid reflux.
In her Function Report (Tr. 128-138), plaintiff stated that she lived alone in an
apartment. On an average day, she said she sleeps, “lay[s] around,” and talks on the
phone. She reported that she has no hobbies, and can only pay attention for ten
minutes. Plaintiff indicated that her personal care and her daily activities had changed
due to her hand cramps, and she had difficulty dressing herself, bathing, and
grooming. She stated that she is able to prepare sandwiches, soups, and vegetables
for herself on the weekends, but preparing this food takes her a prolonged period of
time. Cleaning takes plaintiff three hours because she must sit down and take breaks.
Plaintiff leaves her apartment three times per week, but cannot go out alone or drive
herself because her vision is poor. She reported being able to walk one block before
needing to rest. She shops for food and cleaning supplies approximately once every
month, but reported difficulty paying bills. Plaintiff indicated that she struggles to
follow written instructions, but is able to follow oral instructions. She said she has
difficulty handling stress or changes in routine.

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B. Hearing on February 26, 2010
Plaintiff was 44 years old at the time of the hearing, and lived alone in an
apartment. She attended school through the eleventh grade. According to plaintiff’s
testimony, her poor eyesight, deteriorating from diabetes, prevents her from working.
Plaintiff explained that she was diagnosed with diabetes about 20 years earlier. She
admitted that she had stopped taking her diabetes medication because she was
depressed after the deaths of several family members. She insisted that she takes her
blood pressure medication regularly, but in combination with her other medications,
it makes her feel tired and “drunk.” Plaintiff had laser surgery on her left eye for
microaneurysms, and she indicated that she is completely blind in her right eye. (Tr.
22-26).
Plaintiff testified that she does not have the strength to do anything all day
because of her depression. Plaintiff stated that she experiences pain in her legs, the
cause of which is unknown as no doctor ever sent her to have her legs examined. She
reported that she is able to walk or stand for 30 minutes before needing to rest, and
that sitting made her legs hurt as well. She said that she could lift 15 pounds before
experiencing arm pain similar to her leg pain. Plaintiff testified that she quit smoking,
but subsequently recanted, admitting that she smokes about five cigarettes per day.
She also testified that she quit drinking. (Tr. 27-31).
Plaintiff eats microwaved foods because her poor vision prevents her from using
the stove. Her sister does her laundry, and helps her with other household chores.
Plaintiff reported that she can dress and bathe herself adequately. She stated that her
sister pays for everything, including medicine.

When asked to explain her total

reported income over her entire life (just over $11,000) she said she could not

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remember what she did during years she reported no income at all, or if she received
welfare during those years. (Tr. 27- 32).
Finally, plaintiff described an incident in the 1990s when a man for whom she
was babysitting raped and murdered a teenager. She stated that she thinks about that
episode all the time, and how she might have been the victim instead.

Plaintiff

indicated that she does not get along with others, because she has no teeth and feels
ugly. She avoids going outside because she is so self-conscious about her missing
teeth. (Tr. 32-6).
Jeffrey McGraski, a vocational expert, provided testimony regarding employment
opportunities for a hypothetical individual with plaintiff’s education and age, with the
ability to perform light work requiring simple tasks only, in a temperature controlled
environment, without ladders, ropes, scaffolds, unprotected heights, or hazardous
machinery, requiring no depth perception, and only occasional contact with the public
and co-workers. Mr. McGraski opined that such an individual would be able to work
as a bagger (1,000 positions available within the state of Missouri; 50,000 in the
national economy) or a packer (1,500 positions available within the state of Missouri;
100,000 in the national economy). In response to a second hypothetical, in which the
ALJ added that the individual could occasionally climb stairs and ramps, and frequently
but not constantly balance, stoop, kneel, crouch, and crawl, Mr. McGraski testified that
this would not impact the number of jobs available. He also stated that no jobs would
exist if such an individual required time for unscheduled disruptions due to the effects
of medication, would have to lie down and take breaks, and was unable to concentrate
for an eight-hour work day. Finally, plaintiff’s counsel asked about the jobs available
to the person from the first and second hypotheticals, if that person also had light

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perception in one eye, and limited vision allowing perception of only gross visual
distinctions in the other eye. Mr. McGraski responded that the same jobs mentioned
initially would be available according to the Dictionary of Occupational Titles because
they only require gross visual ability, although as a vocational expert he did not believe
any jobs would exist for a person with those limitations. (Tr. 38-40).
C. Medical Evidence
On June 15, 2009, plaintiff saw Kenneth L. Wilkins, M.D. for diabetes,
hypertension, and hyperlipidemia.

Plaintiff’s grooming and affect were normal.

Plaintiff stated that she had crying spells for no reason, could not find a place to live,
and was tired of taking all of her medications. Dr. Wilkins diagnosed plaintiff with
depression, and prescribed Paxil. (Tr. 367-69). On September 28, 2009, Dr. Wilkins
increased plaintiff’s Paxil dosage, noting plaintiff’s dysthymic mood and feelings of
worthlessness, and referred her to Hopewell Clinic. (Tr. 362). On December 28, 2009,
Dr. Wilkins again increased plaintiff’s Paxil dosage. (Tr. 359).
On October 13, 2009, plaintiff saw Laila Gabrawy, M.D. for total loss of vision in
her right eye and blurred vision in her left eye.1 Dr. Gabrawy determined plaintiff’s
visual acuity in her left eye to be 20/200 without a prescription, and 20/25 with her
current prescription.2 Plaintiff’s right eye was only capable of light perception (“LP”).
1

In the m edical records, “right eye” is often called “OD” and “left eye” is called “OS.”
Krissa Lyse B. Drentlaw, Visual Acuity: The Critical Measure!, Association of Technical Personnel
in Ophthalm ology, Fig. 1.2 at 4,
http://www.atpo.org/Documents/New/Articles/Visual%20Acuity%20The%20Critical%20Measure!.pdf.
2

Visual acuity uncorrected by a prescription is indicated by the abbreviation “s.c.” while
a measurem ent with correction is indicated by the abbreviation “c.c.” Krissa Lyse B. Drentlaw,
Visual Acuity: The Critical Measure!, Association of Technical Personnel in Ophthalm ology, Fig.
1.2 at 4. Visual acuity is often expressed “as a fraction in which the num erator denotes the
distance the patient is from the chart and the denom inator denotes the distance at which an
emm etropic eye could see the optotype on the chart. For exam ple, a patient with a visual
acuity of 20/50 sees at twenty feet what the patient with no refractive error or ocular pathology
would see at fifty feet.” Id. at 3.

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Dr. Gabrawy also observed cataracts in both eyes, retinal abnormality, retinal
hemorrhaging, and retinal blood vessels with microaneurysms.

Dr. Gabrawy

recommended prescription eyeglasses and medical therapy safety glasses, and
referred plaintiff to Connect Care for further treatment. (Tr. 360-61).
On October 20, 2009, plaintiff met with Courtney Morgan, M.A., an outpatient
therapist at Hopewell Center. Morgan noted that plaintiff’s affect appeared blunted,
and that plaintiff stood or paced throughout the interview because it was painful to sit
down. Morgan concluded that plaintiff suffered from pain disorder with psychological
factors, experienced severe problems with daily living, and had a GAF of 41. (Tr. 29699). On October 29, 2009, plaintiff went to Eye Associates for a retinal evaluation.
Plaintiff’s left eye demonstrated distance visual acuity of 20/100 without correction,
and near visual acuity of 20/25 with correction. Plaintiff’s pinhole visual acuity was
20/60.3 Vision in her right eye was limited to only light perception. (Tr. 392-394). A
November 19, 2009 exam revealed left eye visual acuity of 20/200, and pinhole visual
acuity of 20/30. (Tr. 396).
On January 5, 2010, an eye examination again found only light perception in
plaintiff’s right eye, and uncorrected visual acuity of 20/100 in the left. Pinhole visual
acuity was 20/60. (Tr. 397). Another eye examination on January 14, 2010 showed
visual acuity of 20/400 and pinhole visual acuity of 20/60 in the left eye, and light
3

A pinhole occluder is a device used to distinguish between vision deficiencies resulting
from refractive errors which can be corrected with lenses and others deficiencies caused by eye
disease which cannot. A pinhole occluder determ ines the best visual acuity attainable through
the use of corrective lenses. See Bill Lloyd, How does squinting im prove eyesight?, W EB MD,
(Nov. 4, 2008), http://blogs.webmd.com /eye-on-vision/2008/11/how-does-squinting-im prove
-eyesight.htm l (last visited October 29, 2012). See also, University of Michigan Kellogg Eye
Center, Visual Acuity, T H E E YE ’S H AVE I T , http://www.kellogg.um ich.edu/theeyeshaveit/
screening/visual-acuity.htm l (last visited October 29, 2012).
Pinhole visual acuity is abbreviated on ophthalm ologists’ charts as “PH.” Krissa Lyse B.
Drentlaw, Visual Acuity: The Critical Measure!, Association of Technical Personnel in
Ophthalm ology, Fig. 1.2 at 4.

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perception in the right eye. (Tr. 398). Finally, on February 16, 2010, A. Malik, M.D.
at Hopewell Center diagnosed plaintiff with bipolar disorder, depression, and
posttraumatic stress disorder. Dr. Malik discontinued Paxil and prescribed Remeron
and Seroquel. Dr. Malik determined that plaintiff’s GAF score was 35. (Tr. 379-82).
III. The ALJ’s Decision
In the decision issued on July 6, 2010, the ALJ made the following findings:
1.

Plaintiff has not engaged in substantial gainful activity since March 31,
2009, the application date.

2.

Plaintiff has the following severe impairments: insulin dependent diabetes
mellitus, depression/bipolar disorder, and decreased visual acuity.

3.

Plaintiff does not have an impairment or combination of impairments that
meets or substantially equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.

4.

Plaintiff has the residual functional capacity to perform light work, except
she cannot climb ropes, ladders, or scaffolds; must avoid concentrated
exposure to industrial hazards and unprotected heights; cannot perform
jobs requiring depth perception; must work in a temperature-controlled
environment; and is limited to simple tasks only which require no more
than occasional contact with the general public and co-workers.

5.

Plaintiff has no past relevant work.

6.

Plaintiff was born on March 1, 1965 and was 44 years old on the date the
application was filed.

7.

Plaintiff has a limited education, and is able to communicate in English.

8.

Transferability of job skills is not an issue because plaintiff has no past
relevant work.

9.

Considering plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the plaintiff can perform.

10.

Plaintiff has not been under a disability, as defined in the Social Security
Act, since March 31, 2009, the date the application was filed.

(Tr. 11-17).

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IV. Legal Standards
The district court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance, but
enough so that a reasonable mind might find it adequate to support the conclusion.”
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the court finds it
possible to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the Court must affirm the decision of the
Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
citation omitted).
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);
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).

The Commissioner has

established a five-step process for determining whether a person is disabled. See 20
C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step in
the disability determination entails a separate analysis and legal standard.” Lacroix v.
Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
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

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the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s [RFC], which is the most
a claimant can do despite her limitations.” Moore, 572 F.3d at 523 (citing 20 C.F.R. §
404.1545(a)(1)). “RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms,
such as pain, may cause physical or mental limitations or restrictions that may affect
his or her capacity to do work-related physical and mental activities.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and others,
and an individual’s own description of his limitations.”

Moore, 572 F.3d at 523

(quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects
of medication; (5) any functional restrictions; (6) the claimant’s work history; and (7)
the absence of objective medical evidence to support the claimant’s complaints.”
Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted).
“Although ‘an ALJ may not discount a claimant’s allegations of disabling pain solely
because the objective medical evidence does not fully support them,’ the ALJ may find
that these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After

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considering the seven factors, the ALJ must make express credibility determinations and
set forth the inconsistencies in the record which caused the ALJ to reject the claimant’s
complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152
F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
§ 404.1520(f).
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff argues that the ALJ failed to properly consider evidence relating to
plaintiff’s visual acuity and mental health. The Court will address each of plaintiff’s
arguments in turn.
1. Visual Acuity

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Plaintiff contends that the ALJ failed to consider or understand the
ophthalmological medical evidence in the record when determining that plaintiff’s
condition did not meet or equal a listed impairment, or when arriving at plaintiff’s RFC.
Plaintiff argues that her condition meets the listed impairment of “Loss of Visual Acuity,”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.02, that her RFC is not supported by substantial
evidence, and that the ALJ should have ordered a consultative examination or obtained
testimony of a medical advisor to improve the ALJ’s understanding of the visual acuity
records and the degree of plaintiff’s limitations.
A. Listing 2.02
The ALJ discussed his reasons for finding that plaintiff did not meet a listing
under 12.00 Mental Disorders, but he did not explain why plaintiff did not meet the
disability listing of 2.02 Loss of Visual Acuity. However, “[t]here is no error when an
ALJ fails to explain why an impairment does not equal one of the listed impairments as
long as the overall conclusion is supported by the record.” Boettcher v. Astrue, 652
F.3d 860, 863 (8th Cir. 2011). The issue is whether the ALJ’s conclusion is supported,
not whether the ALJ explained that support in his decision.
Under listing 2.02, the plaintiff is disabled if the vision in her better eye after
best correction is 20/200 or less. The ALJ’s conclusion is clearly supported by the
record, which is replete with evidence that plaintiff’s vision in her left and better eye
after best correction was consistently better than 20/200. Plaintiff misreads the record
and argues that medical evidence shows visual acuity of 20/200 in her left eye with a
prescription.

In fact, a careful examination of every visual acuity examination

undergone by plaintiff reveals left eye visual acuity of 20/100, 20/200, or 20/400

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uncorrected.4 With correction, Dr. Gabrawy found plaintiff’s left eye improved to 20/25.
(Tr. 360).

Furthermore, every examination conducted with a pinhole occluder found

that plaintiff’s visual acuity could be corrected to 20/60 or better.5 The ALJ’s conclusion
that plaintiff did not meet the criteria of listing 2.02 is supported by the record, and the
ALJ’s failure to discuss his reasoning is not reversible error.
B. Residual Functional Capacity
Plaintiff argues that the ALJ’s RFC determination is flawed, because it does not
adequately account for plaintiff’s visual limitations. However, the ALJ clearly considered
plaintiff’s loss of vision in his RFC determination. The RFC limits plaintiff to tasks that
do not require depth perception, accommodating plaintiff’s loss of vision in her right
eye. (Tr. 12). Furthermore, the ALJ discussed the visual acuity examination conducted
by Dr. Gabrawy. (Tr. 13). Although this was the only eye examination discussed in the
opinion, the ALJ need not mention every piece of evidence submitted. Wildman v.
Astrue, 596 F.3d 959, 966 (8th Cir. 2010). In this case, visual acuity and pinhole visual
acuity tests consistently showed plaintiff’s vision in her left eye to be correctable to
20/25 (95% visual acuity efficiency), 20/30 (90% efficiency), or 20/60 (70%
efficiency). 20 C.F.R. Pt. 404, Subpt. P, App. 1, Tbl. 1. This evidence shows that
plaintiff’s vision in her left eye is generally correctable with prescription lenses. This
justifies the ALJ’s decision not to include any additional visual limitations in the RFC.

4

Dr. Gabrawy found left eye visual acuity of 20/200 without correction. (Tr. 360). Eye
Associates found left eye visual acuity of 20/100 without correction. (Tr. 392). Subsequent
exam s found left eye visual acuity to be 20/200 (Tr. 396), 20/100 (Tr. 397), and 20/400 (Tr.
398) - all without correction.
5

On October 29, 2009, plaintiff’s corrected near vision was 20/25 and her pinhole visual
acuity was 20/60. (Tr. 392). On November 19, 2009, plaintiff’s pinhole visual acuity was
20/30. (Tr. 396). On January 5, 2010 and January 14, 2010, plaintiff’s pinhole visual acuity
was 20/60 (Tr. 397-98).

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Finally, even if the ALJ found an RFC exactly corresponding with what plaintiff’s counsel
suggested in his hypothetical at the hearing, the number of jobs available would not
have changed. As the VE testified, the occupations of bagger and packer require only
gross visual ability according to the Dictionary of Occupational Titles. (Tr. 38-40).
In conclusion, the ALJ’s RFC determination is supported by substantial evidence
on the record as a whole.
C. Lack of Consultative Examination or Medical Advisor
Next, plaintiff argues that the ALJ was confused by the ophthalmological records,
and therefore should have ordered a consultative examination or consulted a medical
advisor. During the hearing, both the ALJ and the plaintiff’s counsel remarked upon the
difficulty of deciphering ophthalmological records. (Tr. 25-6).
Under the regulations, if the medical evidence available to the ALJ is insufficient
to enable a determination of whether claimant is disabled, a consultative examination
may be ordered. 20 C.F.R. § 416.917. Failure to order an examination is reversible
error only if the ALJ could not make an informed decision on the record without it.
Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994) (“The ALJ is required to order
medical examinations and tests only if the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.”); Dozier v.
Heckler, 754 F.2d 274, 276 (8th Cir. 1985) (quoting Reeves v. Heckler, 734 F.2d 519,
522 n.1 (11th Cir. 1984)) (“It is reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary for him to make an informed
decision.”). The ALJ may also consult with an independent medical advisor to more fully
understand the plaintiff’s impairments. Harris v. Barnhart, 356 F.3d 926, 931 (8th Cir.
2004).

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In this case, failure to order a consultative examination or to utilize an
independent medical expert was not error. The multiple examinations in the record
were a sufficient basis upon which the ALJ could make an informed decision. The visual
acuity scores were clear from the face of these records without additional elaboration
from experts.
B. Mental Health
Plaintiff claims that the ALJ did not consider the impact of her non-exertional
mental impairments on her exertional abilities in determining her RFC, as required by
SSR 96-8p (S.S.A.).

SOCIAL

SECURITY RULING ,

FUNCTIONAL CAPACITY IN INITIAL CLAIMS ,

TITLES II

AND

XVI: ASSESSING

RESIDUAL

1996 WL 374184. Furthermore, plaintiff suggests

that the ALJ did not properly weigh medical evidence regarding plaintiff’s mental health
as required by the regulations.
The ALJ found that plaintiff suffers from the severe impairment of
depression/bipolar disorder (Tr. 11), and accounted for plaintiff’s mental impairments
by finding that plaintiff has the residual functional capacity to perform “simple tasks only
which require no more than occasional contact with the general public and co-workers.”
(Tr. 12). In arriving at this conclusion, the ALJ discussed the findings of Dr. Wilkins, Dr.
Malik, and Ms. Morgan. The ALJ also discussed the credibility of plaintiff’s complaints
of depression.
Dr. Wilkins diagnosed plaintiff with depression, and although he met with the
plaintiff multiple times, he did not observe any of the severe symptoms that Dr. Malik
recorded. The ALJ decided to discount Dr. Malik’s medical opinion because Dr. Malik
only met with the plaintiff once, just ten days prior to the hearing. (Tr. 14). The length

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of the treatment relationship and the frequency of examination are permissible
considerations when weighing the opinions of different medical sources. 20 C.F.R.
§ 404.1527. See also, Clark v. Apfel, 141 F.3d 1253, 1256 (8th Cir. 1998) (citing
Loving v. Dep’t of Health & Human Serv., 16 F.3d 967, 971 (8th Cir. 1994)) (allowing
an ALJ to discount a one-time evaluation).
The ALJ also found plaintiff’s complaints of disabling depression not credible.
When applying for disability benefits, plaintiff stated she was not seeing anyone for her
depression and suggested there was no reason to do so. (Tr. 14). The ALJ noted that
plaintiff has a history of medical noncompliance. Id. Noncompliance may be considered
in a credibility determination. See, Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir.
2001). Furthermore, the ALJ observed that plaintiff made inconsistent statements to
treating sources (Tr. 15). The ALJ also remarked on her lack of work history, which the
Eighth Circuit has held “may indicate a lack of motivation to work rather than a lack of
ability,” and may negatively impact plaintiff’s credibility. Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001) (citing Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993)).
The ALJ was allowed to consider all of the above-mentioned factors in his credibility
determination, and that determination was adequately supported.
Finally, plaintiff argues that because the ALJ did not mention the GAF scores of
41 and 35, assigned to the plaintiff by Ms. Morgan and Dr. Malik respectively, the ALJ
did not consider them. This is incorrect. The ALJ discussed the evidence from both Ms.
Morgan and Dr. Malik, and necessarily considered the GAF score when considering the
evidence from those professionals, even if the ALJ failed to explicitly discuss those
scores. See Bradley v. Astrue, 528 F.3d 1113, 1115 n.3 (8th Cir. 2008).

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In conclusion, the ALJ did not err in weighing the medical and subjective
evidence of plaintiff’s mental impairment.

The ALJ’s RFC, which includes an

accommodation for plaintiff’s mental disabilities, is supported by substantial evidence
on the record as a whole.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by plaintiff in her brief in
support of complaint [#19] is denied.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 31st day of December, 2012.

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