Thornhill v. Astrue
MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that the relief sought by plaintiff in the brief in support of his complaint [Doc. #13] is denied. IT IS FURTHER ORDERED that plaintiff's motion for extension of time to file a brief in support of the complaint [Doc. #12] is moot. A separate Judgment in accordance with this Memorandum and Order will be entered this same date.. Signed by District Judge Carol E. Jackson on 7/24/2013. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Case No. 4:12-CV-1150 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On March 30, 2009, plaintiff Christopher Thornhill filed applications for a period
of disability and disability insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401 et. seq., (Tr. 125-128), and for supplemental security income (SSI),
Title XVI, 42 U.S.C. §§ 1381 et seq., with an onset date of March 9, 2009. (Tr. 129132). After plaintiff’s application was denied on initial consideration (Tr. 55-61), he
requested a hearing from an Administrative Law Judge (ALJ). See Tr. 70-76
(acknowledging request for hearing).
Plaintiff and counsel appeared for a hearing on September 27, 2010. (Tr. 2949). On the day of the hearing, plaintiff amended his onset date to August 31, 2009.
(Tr. 152). On March 18, 2011, the ALJ issued a decision denying plaintiff’s application
(Tr. 12-28), and the Appeals Council denied plaintiff’s request for review on May 14,
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, and should be substituted for Michael J. Astrue as the defendant
in this suit. No further action need 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).
2012. (Tr. 1-6). Accordingly, the ALJ’s decision stands as the Commissioner’s final
II. Evidence Before the ALJ
A. Disability Application Documents
In his Disability Report (Tr. 172-179), plaintiff listed his disabling conditions as
bipolar II disorder and hypertension. He stated that he has difficulty concentrating and
keeping focus. Plaintiff reported that his medication helps, but it causes him to feel
unmotivated. He stated that when he is depressed or fatigued he will sleep a full day.
Plaintiff listed past employment as assistant manager at a musical instrument store,
file clerk at a law firm, self-employed handyman, inspector at a factory, regional tech
at a ticket outlet, retail salesman, retail stock person, and x-ray technician. Plaintiff
completed a second Disability Report (Tr. 198-204) adding that he also suffers from
mild mood swings and increased isolation.
In his Function Report (Tr. 153-161), plaintiff wrote that his daily activities
include getting his son ready for school and sometimes taking him to school, looking
for a job, taking care of his daughters, showering, and preparing meals. Plaintiff stated
that he is “able to do all indoor and outdoor chores,” including shopping for groceries,
clothes. and tools. He wrote that he goes outside three to four times a week and that
he can drive a motor vehicle. He stated that he can pay bills, handle a savings account,
count change, and use a checkbook. He wrote that he used to play music, but no
longer does because of a lack of motivation. He further wrote that he gets along with
others most of the time, but can have angry outbursts and does not engage in any
The plaintiff’s brief in support of his complaint was accepted for filing and
considered by the Court. Thus, plainitiff’s motion to extend the time for filing is moot.
social activities. He stated that he is good at following written and spoken instructions,
but does not handle stress or changes in routine very well.
B. Hearing on September 27, 2010
At the time of the hearing, plaintiff was 43 years old, married, and lived in a
house with his wife and three children (then aged 5, 6 and 11). (Tr. 32-33). Plaintiff’s
height was 6'0" and he weighed 351 pounds. (Tr. 33). Plaintiff completed the 11th
grade; he received no further training or education after leaving high school. (Tr. 34).
Plaintiff drives three or four miles twice a day transporting his children to and from
school. He testified that he is unable to drive for long periods of time because his
medication causes fatigue. (Tr. 33).
Plaintiff testified that he was last employed in August 2009 as a computer
technician. (Tr. 34). He stated that he was no longer given assignments due to his
inability to focus and complete jobs in a timely manner. He was self-employed from
2004 to 2008 doing work as a handyman; he stopped because it was hard for him to
focus and finish tasks. (Tr. 35). Plaintiff testified that he quit working at the music
because of issues involving “focus, confusion, [and] misscommunicati[on].” Plaintiff
also quit his job as a computer technician for a ticketing company because of focus
issues and difficulties in completing tasks. (Tr. 36).
Plaintiff believed he would be unable to work full time because of his bipolar
condition and the fatigue caused by his prescription medication. (Tr. 36-37). Despite
his fatigue, plaintiff stated that he has difficulty sleeping and goes without sleep for two
or three nights a month. (Tr. 39-40). He testified that his medication frequently
changes and that he has suffered side effects that range from hallucinations to “falling
asleep in mid-sentence when  talking to people.” (Tr. 37-38). At the time of the
hearing, plaintiff stated that he was taking Lamictal,3 Paxil,4 and Trazodone.5 (Tr. 3839).
Plaintiff testified that he suffers from mood swings in which he is “happy one
minute or smiling and then [he] could just fall asleep or  could tear somebody’s head
off.” He testified that he only interacts with his family and with a couple of friends by
telephone. He complained of diabetes, that his legs sometimes swell up to three times
their size, and that he is tired and overweight. (Tr. 41). Plaintiff reported difficulty
sitting, standing for more than a couple of minutes, and cannot walk a block without
a break. (Tr. 41-42). He testified that he has difficulty showering, because he is
sometimes too tired to stand, and that the bathtub is too small. (Tr. 42-43).
Plaintiff testified that when he cooks he has problems standing and remembering
that there is food on the stove.
His wife does most of the cleaning and grocery
shopping. (Tr. 43). He testified that he spends most of the day trying to read and play
bass, but he loses focus quickly. (Tr. 43-44). Plaintiff testified that he leaves his home
only to take his children to school. (Tr. 44).
Lamictal, or Lamotrigene, is used to increase the time between episodes of
depression, mania, and other abnormal moods in patients with bipolar disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695007.html (last visited on Feb.
Paxil is a psychotropic drug indicated for the treatment of major depressive
disorder, obsessive-compulsive disorder, panic disorder, social anxiety disorder,
generalized anxiety disorder, and post-traumatic stress disorder. See Phys. Desk. Ref.
1501-03 (60th ed. 2006).
Trazodone is a seratonin modulator prescribed for the treatment of depression.
It may also be prescribed for the treatment of schizophrenia and anxiety.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681038.html (last visited on Feb.
Plaintiff testified to having a case manager who helps him with day-to day
matters, such as taking him to appointments and helping him with paperwork and
medication. (Tr. 44-45).
He stated that he smokes about two packs of cigarettes a day because of his
nerves. (Tr. 45). He admitted to smoking marijuana, but testified that his last use was
one year prior to the hearing. (Tr. 45-46).
In response to questions posed by the ALJ, plaintiff testified that he was denied
Medicaid because he missed an appointment, that he has seen his psychiatrist every
four weeks since 2004, and that his family lives solely on food stamps and his wife’s
part-time income. (Tr. 46-47).
C. Opinion of Vocational Expert
On October 18, 2010, the ALJ sent a letter to vocational expert, James M.
England, Jr., M.Ed., requesting that he complete a set of interrogatories based on his
professional opinion of plaintiff’s current employment opportunities. (Tr. 208-214).
After confirming that he had read and understood the medical reports and
familiarized himself with the exhibits in the case, Mr. England listed plaintiff’s vocational
history for the past fifteen years and classified each position. Mr. England described
handyman as medium, skilled work; assistant manager at a musical instrument store
as medium work based on the way plaintiff performed the job, but light work based on
the way it is normally performed in the open labor market; retail sales and file clerk
as light, semi-skilled work; and ticket machine technician as medium, semi-skilled
work. (Tr. 219-220).
The interrogatories asked about the employment opportunities for a hypothetical
43-year-old individual with a high school equivalent education and a work history as
described in the records of the instant case. Mr. England was asked to assume that the
individual’s combined impairments limited him to medium work, except for lifting or
carrying more than 50 pounds occasionally and 25 pounds frequently; standing or
walking more than 6 hours in an 8-hour workday; exposure to hazards (unprotected
heights or dangerous unprotected moving machinery); and performing more than
simple work with no more than occasional interaction with the general public. Mr.
England answered that such an individual would not be able to perform any of
plaintiff’s past work since those jobs required more than simple work activity and some
of the jobs involved more than occasional interaction with the general public. Mr.
England further stated that the hypothetical individual would have no usable
transferable skills because of the restrictions involving moving machinery and
occasional interaction with the general public. (Tr. 217-218, 220).
Mr. England was then asked to identify the jobs that the hypothetical individual
with the same limitations could perform. Mr. England opined that such an individual
could perform work as a busboy, a medium position with a Specific Vocational
Preparation (“SVP”) level of 26 (of which there are 1,500 in the St. Louis metropolitan
area); dishwasher, a medium position with an SVP of 2 (of which there are 3,000 in
the St. Louis metropolitan area); office cleaner, a light, unskilled position (of which
there are 12,000 in the St. Louis metropolitan area); and assembler of small parts, a
The SVP level listed for each occupation in the Dictionary of Occupational Titles
(DOT) connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. Hulsey v. Astrue, 622 F.3d
917, 923 (8th Cir. 2010). At SVP level 2, an occupation requires more than a short
demonstration but not more than one month of vocational preparation. 20 C.F.R. §
light position with an SVP of 2 (of which there are 3,000 in the St. Louis metropolitan
area). (Tr. 220).
On February 9, 2011, Mr. England responded to additional hypothetical
questions posed by plaintiff’s counsel. (Tr. 221-223, 229). The first question asked
about the employment opportunities for an individual with the same age, education
and past relevant work as plaintiff who has marked7 limitations in his abilities to
maintain reliability; make simple and rational decisions; and maintain attention and
concentration for extended periods. Additionally, this individual also has moderate8
limitations in his abilities to cope with normal work stress; function independently;
behave in an emotionally stable manner; adhere to basic standards of neatness and
cleanliness; relate to family, peers or caregivers; interact with strangers or the general
public; accept instructions and respond to criticism; perform at a consistent pace
without an unreasonable number and length of breaks; sustain an ordinary routine
without special supervision; and respond to changes in a work setting. Mr. England
answered that he did not believe that such an individual would be able to perform any
of plaintiff’s past relevant work or any alternative work in the local or national
The second question asked about the employment opportunities for an individual
with the same age, education and past relevant work as plaintiff who, because of
Plaintiff’s attorney defines “marked” as “a limitation that seriously interferes
with the ability to function independently, appropriately and effectively. This level of
limitation is incompatible with the ability to perform the function eight hours a day, five
days a week or a compatible schedule.”
Plaintiff’s attorney defines “moderate” as “a significant limitation, but the
individual retains the ability to perform the activity satisfactorily approximately 2/3 of
psychologically based symptoms, would miss work three or more times a month and
would be late to work or need to leave work early three or more times a month. Mr.
England answered that he did not believe that such an individual would be able to
perform any of plaintiff’s past relevant work or any alternative work in the local or
The third question asked about the employment opportunities for an individual
with the same age, education and past relevant work as plaintiff who only retained the
abilities to apply common-sense understanding to carry out simple one or two step
instructions for a total of 6 hours during an 8-hour day and interact appropriately with
coworkers, supervisors, and the general public for a total of 6 hours in an 8-hour day.
Mr. England answered that he did not believe that such an individual would be able to
sustain work in the long run, either in plaintiff’s past employment or in alternative
D. Medical Evidence
The medical records reflect that plaintiff has been seeing Eileen Wu, M.D. at BJC
Behavioral Health for bipolar II disorder, marijuana abuse, and a history of alcohol and
cocaine abuse since 2004.
On January 13, 2009, Dr. Wu decreased plaintiff’s Paxil9 from 30 mg to 20 mg.
No change was made to the Wellbutrin.10 (Tr. 265). On February 10, 2009, Dr. Wu
Paxil is a psychotropic drug indicated for the treatment of major depressive
disorder, obsessive-compulsive disorder, panic disorder, social anxiety disorder,
generalized anxiety disorder, and post-traumatic stress disorder. See Phys. Desk. Ref.
1501-03 (60th ed. 2006).
Wellbutrin, or Buproprion, is an antidepressant of the aminoketone class and
is indicated for treatment of major depressive disorder. See Phys. Desk Ref. 1648-49
(63rd ed. 2009).
noted that “things [were] going well” and that plaintiff was not suffering from any
depression, financial stress, or sleep deprivation.” (Tr. 265). On May 4, 2009, Dr. Wu
wrote that plaintiff’s energy is okay if he gets enough sleep, but that he stays up late
to watch television. (Tr. 263). On June 2, 2009, Dr. Wu wrote that plaintiff has a bad
temperament, but is cooperative. Plaintiff complained that there was “no work out
there,” that he was struggling with financial debt, was stressed, and had trouble
sleeping. Dr. Wu increased plaintiff’s Paxil to 30 mg. (Tr. 302).
On July 8, 2009, Kyle Devore, Ph.D., completed a Psychiatric Review Technique
form. Dr. Devore reported that he had insufficient evidence to determine plaintiff’s
medical disposition or functional limitations because plaintiff failed to keep the
appointment for the scheduled examination. (Tr. 271-281).
On August 3, 2009, Dr. Wu noted that plaintiff discontinued his Wellbutrin a few
weeks earlier without physician direction. Plaintiff reported that his financial situation
was better, his sleep deprivation was improving, and that he had increased energy and
motivation. Dr. Wu observed that plaintiff was more animated and discontinued the
Wellbutrin prescription. (Tr. 299).
On August 20, 2009, Dr. Wu completed an Annual Assessment and Treatment
Plan. The report stated that plaintiff “recently experienced improvement with his mood
and level of motivation since he  increased his work” and that he is “vulnerable to
depression when he has financial difficulty and is unable to provide for his family.”
Plaintiff was advised to discontinue his marijuana use and to follow up with a doctor
for his obesity and other medical issues, which he consistently fails to do. Plaintiff
reported that he is very active with his children’s daily activities, school and schedules.
Dr. Wu recommended conservative treatment described as “low intensity community
based services,” which includes medication, psycho-education, physical health services,
case management services, and exercise with a healthy lifestyle. Plaintiff was
diagnosed with bipolar II disorder, depression, marijuana abuse, history of alcohol and
cocaine abuse, cluster B personality disorder, hypertension, obesity. He was assigned
a GAF score of 55-60.11 (Tr. 288-289).
On September 7, 2009, Dr. Wu wrote that plaintiff’s mood was depressed, that
he could not find work, and that he was having financial difficulties. (Tr. 266). On
December 7, 2009, Dr. Wu wrote that plaintiff typically sleeps six hours per night and
that he drinks a half a pot of coffee per day. Dr. Wu described plaintiff as largely goaloriented with a depressed mood. Plaintiff’s medications were not adjusted. (Tr. 296).
On February 23, 2010, plaintiff reported to Dr. Wu that he was sleeping poorly,
drinking coffee excessively, and that he has no energy and was not working. He further
reported smoking a pack of cigarettes a day and daily use of marijuana. (Tr. 295).
On March 26, 2010, plaintiff saw Walter J. Griffin, M.D. at the South County
Health Center for a physical exam. Plaintiff reported that he was working full-time
doing electrical work and going to school. Plaintiff stated that he had a GED. Treatment
notes indicate that plaintiff suffered from muscle pain, but no joint pain or muscle
weakness. He was described as alert, cooperative, and obese with a normal gait. He
was found to have no lesions, fractures, or deformities. Plaintiff was diagnosed with
A GAF of 51-60 corresponds with “moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR difficulty in social, occupational or
school functioning (E.g., few friends, conflicts with peers or co-workers).” American
Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth
Edition, Text Revision 34 (4th ed. 2000).
hypertension. He was prescribed Amlodipine Besylate12 and given dietary advice. (Tr.
On March 30, 2010, plaintiff visited with Shilpa Thornton, M.D. at the South
County Health Center because he “saw something in [his] right eye.” Dr. Thornton
diagnosed plaintiff with diabetes mellitus, hypertensive retinopathy, and preglaucoma.
Plaintiff was referred to St. Louis ConnectCare Ophthalmology. (Tr. 315-316). The
following day, plaintiff saw Caroline Van Marello, M.S., R.D., L.D. at the South County
Health Center in order to discuss nutrition and diet. Plaintiff was advised to eat more
fiber and vegetables, drink less juice, and keep a food diary. (Tr. 313-314).
On April 7, 2010, Dr. Wu completed a medical source statement. Dr. Wu
indicated that plaintiff had moderate limitations13 in the following areas: coping with
normal stress; functioning independently; behaving in an emotionally stable manner;
adhering to basic standards of neatness and cleanliness; relating to family, peers or
caregivers; interacting with strangers or the general public; accepting instructions or
responding to criticism; performing at a consistent pace without an unreasonable
number and length of breaks; sustaining an ordinary routine without special
supervision; and responding to changes in a work setting. Dr. Wu wrote that plaintiff
had marked limitations14 in maintaining reliability; making simple and rational
Amlodipine is indicated for the treatment of hypertension by inhibiting the
transmembrane influx of calcium ions into vascular smooth muscle and cardiac muscle.
http://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?id=10166 (last visited Feb. 27,
“Moderate” is defined as a “limitation that is significant and more than
minimal, but the individual retains the ability to perform the activity satisfactorily
approximately 2/3 of the time.”
“Marked” is defined as a “limitation that seriously interferes with the ability to
perform the activity independently, appropriately, and effectively - more than
moderate, but less than extreme - substantial loss of the ability to function effectively
decisions; and maintaining attention and concentration for extended periods. Dr. Wu
indicated that plaintiff had no limitations in asking simple questions or requesting
assistance and maintaining socially acceptable behavior. Dr. Wu found that plaintiff did
not have any extreme limitations.15 Dr. Wu indicated that plaintiff could apply commonsense understanding to carry out simple one or two-step instructions and interact
appropriately with co-workers, supervisors, and the general public for 6 hours out of
an 8-hour work day. Dr. Wu believed that plaintiff would be absent and late three
times a month or more. Dr. Wu wrote that plaintiff’s disability began on December
2009. The diagnosis consisted of bipolar affective disorder type II, marijuana abuse,
history of alcohol and cocaine abuse, cluster B personality disorder, obesity,
hypertension, and a GAF of 55. (Tr. 283-286).
On April 9, 2010, plaintiff saw Nancy Keller, M.S., R.D., L.D. at the South County
Health Center for a weight-loss follow up. Treatment notes indicate that plaintiff was
“in [a] contemplation stage and not yet ready for action.” He was given recipe ideas
and information on portion control. (Tr. 312). On April 16, 2010, plaintiff saw Dr. Griffin
for a general follow-up. Plaintiff was described as alert, cooperative, and obese with
a normal gait. Treatment notes indicate edema of the feet and swelling of extremities.
Plaintiff’s diagnosis was listed as diabetes mellitus without mention of complication and
hypertension. Dr. Griffin prescribed potassium chloride.16 (Tr. 309-311).
in this area.
“Extreme” is defined as a “limitation that totally precludes the individual’s
ability to usefully perform the activity or to sustain performance of the activity.”
Potassium Chloride is used to prevent or treat hypokalemia (low blood levels
of potassium). http://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?id=33224 (last
visited Feb. 28, 2013).
On April 21, 2010, plaintiff reported to Dr. Wu that he had completely changed
his diet after meeting with his dietitian, that he was taking his medications, and that
he had decreased his marijuana use. Plaintiff stated that he did not have any
medication side effects and was getting six to seven hours of sleep per night. He
reported experiencing financial stress and a feeling of hopelessness; he was not
Plaintiff also reported to Dr. Wu that he had taken on “full time
responsibilities with taking care of his three children during most days of the week and
therefore has not been able to pursue the computer jobs with his friend. He has also
had difficulty finding time to work from home as he is taking the children back and
forth to school and functions and has one young child at home during the day.” (Tr.
Dr. Wu described him as having a fair general appearance, a cooperative
demeanor, alert and euthymic. Her diagnoses were bipolar affective disorder type II,
depression; marijuana dependence in partial remission; history of alcohol, cocaine
abuse; and cluster B personality disorder. Dr. Wu increased plaintiff’s Lamictal
prescription to 25mg and instructed him to take two tablets every night at bedtime.
On April 21, 2010, Dr. Wu wrote that plaintiff “has taken on full time
responsibilities with taking care of his three children during most days of the week and
therefore has not been able to pursue [work].” Dr. Wu further wrote that plaintiff also
has “difficulty finding time to work from home” because of his responsibilities to his
children. (Tr. 290).
On May 17, 2010, plaintiff saw Dr. Griffin for a follow-up regarding his
hypertension and diabetes. Dr. Griffin wrote that he provided plaintiff with a “new dose
on HTCZ [Hydrochlorothiazide]17 and added a new prescription of Lisinopril18 5mg[.]”
(Tr. 307-308). On June 21, 2010, plaintiff saw Dr. Griffin for pain in his right leg. Dr.
Griffin wrote that plaintiff sustained a 2% injury in his right leg after being hit with a
baseball. Dr. Griffin noted that edema was no longer present. (Tr. 305-306). On July
27, 2010, plaintiff took a drug test which came back negative. (Tr. 287).
Dr. Wu completed a second medical source statement in July 2010. Dr. Wu
indicated that plaintiff had moderate limitations in these areas: behaving in an
emotionally stable manner; adhering to basic standards of neatness and cleanliness;
relating to family, peers, or caregivers; accepting instructions or responding to
criticism; maintaining attention and concentration for extended periods; performing at
a consistent pace without an unreasonable number and length of breaks; sustaining
an ordinary routine without special supervision; and responding to changes in work
setting. Dr. Wu found that plaintiff had marked limitations in coping with normal stress
and maintaining reliability. Dr. Wu found that plaintiff had no limitations in functioning
independently; interacting with strangers or the general public; asking simple
questions or requesting assistance; maintaining socially acceptable behavior; and
making simple and rational decisions. Dr. Wu indicated that plaintiff could apply
common-sense understanding to carry out simple one- or two-step instructions and
interact appropriately with co-workers and supervisors for 4 hours out of an 8-hour
workday and with the general public for 6 hours out of an 8-hour workday. Dr. Wu
Hydrochlorothiazide is a diuretic used to treat high blood pressure. See
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682571.html (last visited on
Julyy 24, 2013).
Lisinopril is indicated for the treatment of hypertension. See Phys. Desk Ref.
2053 (61st ed. 2007).
believed that plaintiff would be absent and late three times a month or more. Dr. Wu
wrote that plaintiff’s disability began in December 2004, which is five years earlier than
the onset date she reported in her first medical source statement. (Tr. 325-328).
III. The ALJ’s Decision
In the decision issued on March 18, 2011, the ALJ made the following findings:
Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2013.
Plaintiff has not engaged in substantial gainful activity since August 31,
2009, the amended alleged onset date.
Plaintiff has the following severe impairments: polysubstance abuse,
bipolar disorder, hypertension, and diabetes mellitus.
Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity (RFC) to perform medium
work as defined in 20 CFR 404.1567(c) and 416.967(c) except for lifting
more than 50 pounds occasionally and 25 pounds frequently; standing or
walking more than 6 hours in an 8-hour workday with normal work
breaks; exposure to hazards; and performing more than simple work with
no more than occasional interaction with the general public.
Plaintiff is unable to perform any past relevant work.
Plaintiff is 43 years old, born on April 5, 1967, which is defined as a
younger individual age 18-49.
Plaintiff has a high school equivalent education and is able to
communicate in English.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that plaintiff is “not disabled,” whether or not plaintiff has
transferable job skills.
Considering plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
plaintiff can perform.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from August 31, 2009, through the date of this decision.
IV. Legal Standard
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) 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 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 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 his 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 his RFC and establish that he
cannot return to his 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.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff contends that the ALJ erred by (1) failing to perform an adequate
evaluation of the medical opinion of treating psychiatrist Dr. Wu; (2) failing to evaluate
the functional effects of plaintiff’s cluster B personality disorder; (3) performing an
incomplete and inaccurate evaluation of the evidence in determining the RFC; (4)
failing to provide a narrative discussion for the RFC conclusion; and (5) failing to
include all the limitations from plaintiff’s impairments which were found to be severe.
A. Opinion of Dr. Wu
Plaintiff contends that the ALJ did not properly evaluate Dr. Wu’s opinion,
provided legally insufficient reasons for discounting her opinion, and gave an inaccurate
interpretation of the record.
In his decision, the ALJ acknowledged that Dr. Wu had been treating plaintiff
since June 2004 for bipolar II disorder, marijuana abuse, and a history of alcohol and
cocaine abuse. The ALJ noted that on August 20, 2009, Dr. Wu assigned plaintiff a GAF
score of 55-60. The ALJ cited to the February 23, 2010 examination, in which plaintiff
reported that he was heavily abusing marijuana.19 Dr. Wu recommended that he
discontinue the marijuana abuse. During that visit, plaintiff also reported that caring
for his three children was making it difficult for him to work from home. The ALJ noted
that on April 7, 2010, Dr. Wu completed a medical source statement that assigned
plaintiff a GAF score of 55 and wrote that plaintiff’s “impairments imposed multiple
marked mental functional limitations.” The ALJ also referenced treatment notes from
April 20, 2010, in which Dr. Wu stated that plaintiff reported decreased marijuana use,
compliance with his medication, and no side effects. (Tr. 18).
The Court finds that Dr. Wu’s progress notes, dated February 23, 2010, are
illegible. However, Dr. Wu’s notes from April 21, 2010 reflect the same report.
The ALJ gave “great weight” to the GAF scores, stating that “[t]he GAF opinions
of the treating source are consistent with the clinical signs, symptoms, and findings
contained in the record and supported by the evidence as a whole, including the
claimant’s daily activities.” However, the ALJ gave “less weight” to Dr. Wu’s medical
source statement since it was a “product of a pre-printed form questionnaire” and did
“not articulate an objective medical basis for the extreme limitations indicated and
[was] inconsistent with the physician’s own medical treatment records, GAF scores,
and the conservative treatment rendered.” (Tr. 21).
“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with the rest of the relevant evidence” in the record. 20 C.F.R. § 404.1527(b).
The opinion of a treating source should be given controlling weight where it is wellsupported by clinical and laboratory diagnostic techniques and is not inconsistent with
the record as a whole. 20 C.F.R. § 404.1527(c)(2). If an ALJ discredits a portion of a
treating physician’s opinion, the ALJ must give good reasons for doing so. Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
As to the medical source statement, the ALJ can properly give less than
controlling weight to Dr. Wu’s opinion because it was conclusory. The assessment
consisted solely of checklists with no references to medical evidence or explanation of
her opinion that plaintiff was subject to particular limitations. “The checklist format,
generality, and incompleteness of the assessments limit evidentiary value.” Holmstrom
v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001). “A treating physician’s opinion
deserves no greater respect . . . when [it] consists of nothing more than vague,
conclusory statements.” Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996).
Furthermore, the ALJ noted that the limitations endorsed by Dr. Wu were
inconsistent with her own progress notes, GAF scores, and conservative treatment.
These are legally sufficient reasons for discounting a treating psychiatrist’s opinion.
See Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010) (“It is permissible for an
ALJ to discount an opinion of a treating physician that is inconsistent with the
physician’s clinical treatment notes.”); Palmer v. Astrue, Case No. 4:07-cv-1283 (E.D.
Mo. Dec. 3, 2008) (if a GAF score and a medical source statement contradict each
other, the ALJ can give less weight to the source statement); Gowell v. Apfel, 242 F.3d
793, 796 (8th Cir. 2001) (conservative treatment of a patient can qualify as substantial
evidence to support an ALJ’s decision against a disability).
In the instant case, Dr. Wu assessed plaintiff’s GAF as 55, which is indicative of
moderate symptoms and is inconsistent with the marked to moderate limitations she
indicated in in the medical source statement. Furthermore, on August 20, 2009, Dr.
Wu wrote that plaintiff “experienced a period of improvement this year after episodes
of depression.” Dr. Wu recommended conservative treatment (described as “low
intensity community based services”), which included medication; psycho-education;
physical health services to follow up with hypertension, high cholesterol and sleep
apnea; case management services to assist with treatment compliance; and exercise
with a healthy lifestyle. On September 7, 2009, Dr. Wu wrote that plaintiff could not
find work--not that he should not work. Treatment notes from February 23, 2010
reflect sleeping issues and a poor relationship with wife and in-laws. On April 21, 2010,
Dr. Wu noted that plaintiff’s difficulty in maintaining employment was the result of
taking on full time responsibilities in raising his children. There is no evidence in the
record that plaintiff was hospitalized for bipolar disorder, that Dr. Wu suggested in-
patient treatment, or that the disorder was not controlled with medication. Therefore,
the ALJ’s conclusion that Dr. Wu’s medical notes are inconsistent with the limitations
in the medical source statement is well-supported by the record.
The fact that the ALJ cited to only 3 out of the 11 visits plaintiff had with Dr. Wu
is not reversible error. An ALJ does not need to address every appointment or detail
of the treating physician’s notes. The record as a whole supports the ALJ’s decision to
decline to give the medical source statement controlling weight. Barnes v. Astrue,
4:10-CV-1322 (E.D. Mo. July 7, 2011); see also Karlix v. Barnhart, F.3d 742, 746 (8th
Cir. 2006) (“The fact that the ALJ did not elaborate on this conclusion does not require
reversal, because the record supports the overall conclusion.”).
B. Cluster B Personality Disorder
Plaintiff contends that the ALJ failed to evaluate the functional effects of his
cluster B personality disorder. However, plaintiff did not cite cluster B personality
disorder as an impairment when applying for Social Security benefits or when
completing the accompanying forms. See Kirby v. Astrue, 500 F.3d 705, 708-709
(affirming ALJ’s finding that claimant did not suffer significant impairment; initial
disability form did not claim such impairment). Accordingly, the ALJ had no obligation
to consider this disorder in his opinion.
C. RFC Determination
Plaintiff contends that the ALJ performed an incomplete and inaccurate
evaluation of the evidence in determining RFC, that the ALJ failed to provide a
narrative discussion explaining how he reached his RFC conclusions, and that the RFC
assessment is not supported by any medical evidence.
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted). “The ALJ bears the primary responsibility
for determining a claimant’s RFC and because RFC is a medical question, some medical
evidence must support the determination of the claimant’s RFC.” Id. “However, the
burden of persuasion to prove disability and demonstrate RFC remains on the
claimant.” Id. Even though the RFC assessment draws from medical sources for
support, it is ultimately an administrative determination reserved to the Commissioner.
Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2),
416.946 (2006)); McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (ALJ should
assess the entire record, including medical reports and the individual’s own description
of his limitations).
The ALJ found that plaintiff had the residual functional capacity to perform
medium work except for lifting more than 50 pounds occasionally and 25 pounds
frequently; standing or walking more than 6 hours in an 8-hour workday with normal
work breaks; exposure to hazards; and performing more than simple work with no
more than occasional interaction with the general public. (Tr. 19).
As discussed above, the ALJ properly considered and weighed the medical
opinion of Dr. Wu. The ALJ’s failure to cite specific evidence, such as a doctor visit or
specific statements made in the medical records, does not indicate that such evidence
was not considered. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir.
2005); Wheeler v. Apfel, 224 F.3d 891, 896 (8th Cir. 2000).
Plaintiff further argues that because the ALJ rejected Dr. Wu’s opinion there is
no other medical evidence to support the ALJ’s RFC finding. The Court disagrees. The
ALJ did not entirely discount Dr. Wu’s medical opinion. The ALJ afforded great weight
to the GAF scores, considered Dr. Wu’s medical notes, and accordingly limited
plaintiff’s employment abilities to “simple work.”
However, plaintiff is correct in his contention that the record is void of a specific
opinion by a medical source as to plaintiff’s physical functional abilities. This lack of
information is partially due to plaintiff’s failure to appear for his consultive examination
scheduled on July 8, 2009. (Tr. 271-282). The Eighth Circuit has held that “the
claimant’s failure to provide medical evidence with this information should not be held
against the ALJ when there is medical evidence that supports the ALJ’s decision.” Steed
v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008). Here, the ALJ wrote in his RFC
assessment that “[p]hysial examinations have been essentially unremarkable and
reveal normal independent gait with no evidence of spine or joint abnormality or range
of motion limitation [or] muscle tenderness[.]” (Tr. 21). This statement is supported
by medical records from South County Health Center. (Tr. 309-319). Therefore, the
fact that a doctor does not specify how much a claimant can carry or how long he can
stand or sit does not make it impossible for the ALJ to ascertain the claimant’s workrelated limitations. See Heavin v. Astrue, No. 4:10-cv-573 (E.D. Mo. Sept. 30, 2011).
Furthermore, in determining plaintiff’s RFC, the ALJ properly addressed plaintiff’s
credibility, which the ALJ found to be unreliable. (Tr. 20). He noted, for example, that
plaintiff’s daily activities were not consistent with the degree of impairment alleged.
Specifically, plaintiff plays a major role in caring for his three children, drives an
automobile, plays baseball, and has the ability to perform all household chores. The
ALJ correctly noted that any restrictions in plaintiff’s daily activities are mainly a matter
of choice, rather than any apparent medical proscription.
The ALJ also noted discrepancies between the plaintiff’s hearing testimony and
his medical treatment records. For instance, plaintiff testified that he has an 11th grade
education, but records show he earned a GED. (Tr. 34, 309). Also, plaintiff testified
that he had not abused marijuana in 2010, but medical records show otherwise. (Tr.
45-46, 291). Likewise, plaintiff testified that he last worked in August 2009, but
records show that he was working in a full-time electrical position in March 2010. (Tr.
In further support of the ALJ’s credibility analysis, the Court notes that plaintiff
reported to Dr. Wu on April 21, 2010, that he was unable to pursue computer job
opportunities or home employment opportunities because he had taken on full-time
care of his children. (Tr. 291-292). See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.
2005) (“Courts have found it relevant to credibility when a claimant leaves work for
reasons other than [for] medical condition.”). Furthermore, on September 7, 2009, a
week after his alleged onset date, plaintiff reported to Dr. Wu that he could not find
any work, thus indicating that he had been searching for employment. (Tr. 266). See
Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (seeking work while applying
for disability is inconsistent with allegations of disabling condition). The ALJ also
considered plaintiff’s medications, mental health treatment, demeanor during the
hearing and his good work history, as well as the effect of obesity. The Court finds
that the ALJ’s RFC determination is supported by substantial evidence.
D. Combination of Impairments
Plaintiff contends that the ALJ failed to include in the RFC finding all the
limitations from plaintiff’s impairments which were found severe by the ALJ.
Specifically, plaintiff argues that the ALJ failed to include in the analysis his limited
ability to concentrate.
In assessing plaintiff’s RFC, the ALJ determined that he was limited to
performing “no more than simple work with no more than occasional interaction with
the general public.” (Tr. 19) (emphasis added). This in itself is a significant limitation
reflecting that the ALJ did consider plaintiff’s bipolar disorder symptoms, which include
difficulties with maintaining concentration.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the relief sought by plaintiff in the brief in
support of his complaint [Doc. #13] is denied.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to file
a brief in support of the complaint [Doc. #12] is moot.
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 24th day of July, 2013.
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