Harrison v. Astrue

Filing 21

MEMORANDUM AND ORDER : 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 decision of the Commissioner is affirmed. A separate Judgment in accordance with this Memorandum and Order will be entered this same date.. Signed by District Judge Carol E. Jackson on 6/26/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CLINT HARRISON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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Case No. 4:12-CV-1372 (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 April 14, 2009, plaintiff Clint Harrison filed an application for supplemental
security income, Title VI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of April
1, 1995. (Tr. 116-18). After plaintiff’s application was denied on initial consideration
(Tr. 42-48), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 5054).
Plaintiff and counsel appeared for a hearing on September 30, 2010. (Tr. 2938). The ALJ issued a decision denying plaintiff’s application on January 10, 2011.
(Tr. 15-25). The Appeals Council denied plaintiff’s request for review on June 12,
2012. (Tr. 1-5). Accordingly, the ALJ’s decision stands as the Commissioner’s final
decision.
II. Evidence Before the ALJ
A. Disability Application Documents

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), she is substituted for Michael J.
Astrue as the defendant in this case.

In his Disability Report (Tr. 140-47), plaintiff listed his disabling conditions as
a learning disability, crooked feet, poor memory, an inability to read, and poor
spelling. He stated that he could not stand for longer than 15 minutes because his feet
hurt. He had never worked. On March 24, 2010, and September 13, 2010, plaintiff’s
medications included the antidepressant Citalopram, blood pressure medication, and
the anti-inflammatory Naproxen. (Tr. 179-80).
Plaintiff’s brother Lance Harrison completed a Third-Party Function Report on
April 21, 2009. (Tr. 152-60). According to the report, plaintiff lived with his mother
and his daily activities included listening to music, watching television, drawing
pictures, and isolating himself from others. He needed reminders to attend to his
dress and personal hygiene. He was able to prepare simple meals, such as sandwiches
and frozen dinners. He did not perform any household chores. Plaintiff was able to
drive and go out on his own. He shopped for clothes and other items every 6 to 9
months.

He was not able to pay bills, handle a checkbook or savings account, or

count change. He needed reminders to keep appointments. Lance Harrison indicated
that plaintiff had no problem getting along with others and stated that he was
cooperative with authority figures but did not socialize with other people.

He

responded to changes in routine by becoming very quiet and submissive. Plaintiff had
difficulties with climbing stairs, squatting, walking, talking, understanding, following
instructions, completing tasks, memory and concentration. In a narrative section,
Lance Harrison wrote that plaintiff has clubbed feet which caused him pain and
impaired his ability to walk.

He had suffered from asthma in the past and still

experienced occasional breathing problems. Plaintiff had difficulty with concentrating,
reading and spelling, explaining himself in simple sentences, and holding normal social
conversations. He experienced fear, anxiety, and mood swings. (Tr. 159).
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B. Hearing on September 30, 2010
Plaintiff was 22 years old at the time of the hearing. He was unable to state
how far he had gone in school. (Tr. 31). With prompting, he recalled that he had
been in special education classes at Sumner High School in the City of St. Louis. (Tr.
32-33). He initially was unable to recall whether he had seen a psychologist for testing
but ultimately stated that he remembered “ a little bit.” In response to questions from
his lawyer, plaintiff stated that he believed he had “tried his best” when being tested -he always tried his best. (Tr. 33-34). The ALJ stated that he would refer plaintiff for
additional evaluation.
Dolores E. Gonzalez, M.Ed, a vocational expert, provided testimony regarding
the employment opportunities for a 20 year-old individual with a 10th and 11th grade
education, including some special education services, with no physical limitations and
a limited ability to read. In addition, the hypothetical individual had the ability to
understand, remember and carry out simple instructions and non-detailed tasks; take
appropriate precautions to avoid hazards; was able to respond appropriately to
supervisors and co-workers in a task-oriented setting where contact with others is
casual and infrequent. Ms. Gonzalez was further asked to assume that the individual
should not work in a setting that required constant or regular contact with the public
and should not perform work that required more than infrequent handling of customer
complaints. Ms. Gonzalez opined that such an individual would be able to perform
work as a sticker, which is classified as sedentary unskilled work, and as an electrode
cleaner, which is light unskilled work. (Tr. 36).
Plaintiff’s counsel asked Ms. Gonzalez about the employment opportunities for
an individual who is very slow in completing any tasks, and has a poor ability to grasp

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and apply instructions. Ms. Gonzalez agreed that such an individual would require
accommodation to be employable. (Tr. 37).
C. Records
On August 19, 2004, plaintiff underwent a surgical procedure to address
significant anomalies in his right foot, including pes valgus (clubfoot). (Tr. 203-08).
There is no indication in the record that plaintiff received subsequent treatment for this
condition.
On January 18, 2006, Tom Davant Johns, Ph.D., completed a consultative
psychological evaluation of plaintiff. (Tr. 188-93). Plaintiff was accompanied by his
mother, whom Dr. Johns found to be a less reliable informant than plaintiff. Plaintiff
reported that he was in the 12th grade and expected to graduate in the spring. He
had been suspended several times during middle school for fighting and roaming the
halls but had not been suspended in the current school year. Plaintiff admitted to
some truancy, talking back, and cursing teachers. He endorsed multiple behaviors
consistent with conduct disorder, including being gone from home overnight without
permission, threatening others with violence and weapons, stealing, and lying to avoid
the consequences of his actions. He stated that a Deputy Juvenile Officer had been
assigned to him in middle school.
“incredulous at hearing this.”

Dr. Johns noted that plaintiff’s mother was

(Tr. 189).

Plaintiff stated that he had tried both

marijuana and alcohol once.
On examination, Dr. Johns noted that plaintiff was marginally groomed and was
wearing a soiled t-shirt. Although minimally cooperative, plaintiff was spontaneous
and coherent in verbalizations. Plaintiff’s rate of speech was within normal limits, with
normal quantity, quality, and productivity. His memory was grossly intact. His mood

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was euthymic with a fair range of affect and he was oriented in an age-appropriate
manner.
Dr. Johns attempted to administer the Weschler Adult Intelligence Scale – 3d ed.
(WAIS-III) but plaintiff was uncooperative with testing. For example, plaintiff failed
the first item of the picture completion subtest, an outcome that is very rare even
among mentally retarded claimants. The scores obtained would place plaintiff in the
moderate range of retardation, which Dr. Johns found was clearly inconsistent with his
presentation, use of language, and reported educational placement.

Dr. Johns

assessed plaintiff as uncooperative and passively oppositional. After speaking with the
Department of Social Services counselor by phone, plaintiff agreed to take the subtest
again and proceeded to provide different wrong answers. Dr. Johns diagnosed plaintiff
on Axis I with conduct disorder, childhood onset type, and learning disorder NOS, by
self-report only. Dr. Johns assigned a Global Assessment of Functioning (GAF) score
of 65.2 Dr. Johns opined was that plaintiff was moderately impaired in his ability to
perform adequately in a school setting and in his ability to relate to others.
The next entry in the record is dated January 29, 2009, when plaintiff was seen
in the emergency department at Forest Park Community Hospital after he was tasered
by police. He was examined and found to be fit for confinement. (Tr. 195-201). On
March 24, 2009, he drove himself to the emergency department at Barnes-Jewish
Hospital. (Tr. 216-46). He reported that he had been tackled while playing football
the night before. He heard a loud pop in his neck and blacked out for a period of time
and was experiencing soreness.

X-rays of the spine and chest were normal and

2

A GAF of 61-70 corresponds with “Some mild symptoms . . . OR some difficulty
in . . . social, occupational, or school functioning, . . . but generally functioning pretty
well, has some meaningful interpersonal relationships.” American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 34 (4th ed. 2000).
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plaintiff was discharged with prescriptions for Hydrocodone/acetaminophen and a
muscle relaxer.
L. Lynn Mades, Ph.D. completed a consultative evaluation on July 21, 2009. (Tr.
248-52). Dr. Mades described plaintiff as a fair informant. Plaintiff stated that he had
received special education services for learning and behavioral problems, including
some fighting and talking back. He had been suspended but never expelled and had
no behavior problems outside of school. He was arrested once for driving without a
license or insurance. He did not complete the 12th grade and had not obtained his
GED. He reported that he only drank alcohol on holidays and that his last marijuana
use was 5 months earlier. He denied all other drug history. He was presently not
prescribed any medications.

He lived with his mother and took care of some

household chores such as washing dishes and taking out the trash. He spent time
reading the Bible and watching Christian television.
Dr. Mades noted that plaintiff was well-groomed and casually dressed; his
hygiene was within normal limits. His attitude was nominally cooperative and his
expression was alert with good eye contact. His posture and gait were within normal
limits. Dr. Mades described plaintiff as spontaneous, coherent, relevant, and logical.
There were no problems noted with receptive or expressive language ability; his
speech was normal in rate and rhythm, without tangents, flight of ideas, or
perseveration. His mood was euthymic and his affect full and generally appropriate.
There was no apparent mood disturbance and his reality testing was adequate without
evidence of a thought disorder. There was no suicidal or homicidal ideation. On
examination, plaintiff was oriented in all spheres and his memory seemed to be within
normal limits: he could repeat 5 digits forward, name 4 past presidents, and state his
date of birth and social security number.
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He performed simple calculations and

counted backward from 20 to 1 at a moderate pace without error. His insight and
judgment were slightly limited.
Dr. Mades administered the WAIS-III. Plaintiff made a poor effort: he gave
several incorrect responses on early items in Picture Completion and his performance
on the Coding subtest was much slower during the test than on the sample items given
before the test. Dr. Mades telephoned the Department of Social Services counselor.
A second attempt was no better and the testing was discontinued.

Nonetheless,

plaintiff displayed the ability to maintain adequate attention and concentration, with
appropriate persistence and pace. Dr. Mades gave plaintiff a GAF score of 753 and
opined that he had the ability to manage funds should he receive benefits.
On March 11, 2010, plaintiff was seen by Olivera Boskovska, M.D. (Tr. 265-66).
He reported that he had pain in both feet, with numbness at the surgical site in his
right foot. He rated the pain at 7 on a 10-point scale. He stated that he could not
work because he was unable to stand on his feet. He also stated that he had heard
voices whispering all the time since his childhood. He might have been prescribed
medication in the past but he had not taken it because he was afraid of medicine.
Now, his lawyer told him he needed medication. He stated that he had stopped using
marijuana a year earlier. Plaintiff was diagnosed with benign essential hypertension
and depression and given prescriptions for Celexa, Naproxen, and hydrochlorothiazide.
He was referred to podiatry for further evaluation of his feet but forgot to keep the
appointment. (Tr. 296).

3

A GAF of 71-80 corresponds with “transient and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after family argument); no more
than slight impairment in social, occupational, or school functioning (e.g., temporarily
falling behind in schoolwork).” American Psychiatric Association, Diagnostic &
Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 34 (4th ed.
2000).
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Plaintiff returned to see Dr. Boskovska on April 15, 2010. (Tr. 267-69). He
complained of shortness of breath and tightness in his chest and said that he had
stopped taking the blood pressure medication because it made his chest hurt. He
reported that he was not depressed. Dr. Boskovska determined that the present
dosage of 10 mg of Celexa should be continued without change. On examination, Dr.
Boskovska noted some wheezing sounds and thought that it was likely that plaintiff
had asthma. Plaintiff was prescribed ProAir and Flovent.
Michael T. Amour, Ph.D., completed a consultative evaluation of plaintiff on May
29, 2010. (Tr. 278-85). He was not provided with plaintiff’s academic records.
Plaintiff reported to Dr. Amour that he could not remember where he grew up and he
didn’t know his mother’s last name. He could not remember if he had ever run away
from home or been in fights. He acknowledged having a friend but was unable to
remember whether he had ever had a close friend. He might have started high school
but could not recall how much he had completed. He could not recall whether he had
ever been drunk. He acknowledged smoking marijuana, but only once. He stated that
he had heart problems, asthma and crooked feet. He was prescribed medication
because he got angry and confused and heard loud voices. These voices kept him
awake at night and told him to take a lot of pills or hurt somebody. He was unable to
say whether these voices were inside or outside his head. When asked whether the
voices could be speaking a foreign language, he agreed that it “sounds like it
sometimes.” He reported visual hallucinations in which he saw cartoon characters
such as Bugs Bunny and Daffy Duck. He stated that he was depressed and had crying
spells.
On examination, Dr. Amour noted that plaintiff’s speech was clear but at a very
soft volume.

Plaintiff did not establish eye contact.
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At one point during testing,

plaintiff appeared to fall asleep, gradually falling forward until his head struck the desk.
When Dr. Amour first presented the testing materials, plaintiff complained that he
could not complete the required tasks. When Dr. Amour suggested terminating the
evaluation, plaintiff became angry and said that he would call his attorney. He then
agreed to try the testing materials. Plaintiff achieved a Full Scale IQ score of 42 on the
WAIS-IV, which Dr. Amour characterized as the extremely low range of intellectual
functioning. Based on his inability to report significant details from his past, Dr. Amour
posited that plaintiff’s long-term memory skills were poor, as were his recent memory,
immediate memory, and concentration skills. His insight and judgment were impaired
by cognitive deficits and alleged psychotic symptoms. Dr. Amour also noted, however,
that plaintiff showed no sign of loose associations, tangential thinking, or
circumstantial thinking and displayed no symptoms of thought broadcasting.

Dr.

Amour diagnosed plaintiff on Axis I with malingering, on Axis II with mild mental
retardation versus borderline intellectual functioning and assigned him a GAF score of
40.4 Dr. Amour described plaintiff as presenting a “diagnostic dilemma” and expressed
concern about the adequacy of his effort on the assessment. The claim that plaintiff
hallucinated cartoon characters was “difficult to accept.”
Dr. Amour completed a Medical Source Statement. (Tr. 287-89). He opined
that plaintiff had moderate impairment of the ability to understand, remember, and
carry out simple instructions; marked impairments in the abilities to make judgments
on both simple and complex work-related decisions, and to understand, remember and
carry out complex instructions. He had mild impairment of the ability to interact
4

A GAF of 31-40 corresponds with “some impairment in reality testing or
communication . . . OR major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood.” American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 34
(4th ed. 2000).
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appropriately with the general public and moderate impairment in the ability to interact
appropriately with supervisors and co-workers. He had marked impairment in the
ability to respond to usual work situations and to changes in routine work settings.
However, Dr. Amour noted that, “[m]alingering must be considered.”
On June 16, 2010, Dr. Boskovska noted that plaintiff was not depressed. (Tr.
296-97). He was oriented to person, place and time and was in no distress.
On September 15, 2010, plaintiff was transferred to the St. Louis Metropolitan
Psychiatric Center (SLMPC) from the emergency room at St. Mary’s Hospital. (Tr. 30511). It was reported that plaintiff had a history of chronic schizophrenia with recent
worsening of paranoia and voices telling him to harm himself. Mehret Gebretsudik,
M.D., diagnosed plaintiff at admission with chronic paranoid schizophrenia and
cannabis abuse, with rule-out diagnoses of depression and borderline intellectual
functioning.5 Plaintiff reported that his mood had been depressed for 1 or 2 days, but
denied experiencing other symptoms of depression such as decreased energy, changes
in self care, increased guilt, anhedonia, helplessness, or guilt. He denied experiencing
suicidal ideation or manic episodes.

He reported that his appetite and sleep had

decreased since he ran out of his medication a month earlier. Plaintiff was released
the following day.6 The discharge physician noted that although plaintiff complained
of worsening symptoms his history was inconsistent with psychotic symptoms. Plaintiff

5

The ALJ and plaintiff both misread the date of Dr. Gebretsudik’s report as
September 17, 2010, thus mistakenly placing it after plaintiff’s discharge from
inpatient treatment. A review of the document clearly shows the date was September
15, 2010, and that its purpose was to determine whether admission was appropriate.
See Tr. 310. By the next day, it had been determined that inpatient treatment was
not appropriate and plaintiff was discharged with a prescription for Celexa and a
recommendation to start outpatient treatment. See Tr. 306.
6

Plaintiff stated that he wanted to go home to be with his 2-year-old daughter.
See Tr. 306.
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was “vague and inconsistent about his history”7 and it was possible that he was
malingering to obtain disability. He was discharged with prescriptions for Abilify and
Celexa. His diagnoses at discharge were depression NOS, rule out malingering, and
cannabis abuse. His GAF score at discharge was 51-60.8
On November 13, 2010, Shannon Nanna, Psy.D., completed a consultative
evaluation of plaintiff. (Tr. 312-15). Plaintiff was driven to the appointment by his
mother. He was casually dressed with his hygiene and grooming within normal limits.
His gait was normal. He told Dr. Nanna that he had memory problems and was
depressed. He reported that he had attempted suicide “a long time ago,” but was
unable to clarify the manner of the attempt or when it occurred. He reported that,
since he was a teenager, he has heard voices telling him what to do and what not to
do. Dr. Nanna did not observe any behaviors consistent with someone responding to
hallucinations. Plaintiff stated he left school in tenth grade but could not remember
the reason he left or anything about his learning disabilities.
Dr. Nanna observed that plaintiff made poor eye contact and his affect was
blunted. He had no difficulties with receptive or expressive language ability, although
his speech was limited. He was alert and oriented. She described his cooperation as
impaired and noted that he was able to repeat 1 out of 6 digits going forward and was
unable to name the current governor, mayor, or president, and was unable to name
past presidents.

He also performed poorly on tests of judgment and proverb

7

For instance, plaintiff reported that he had been born and raised in New York,
and moved to St. Louis in 9th grade. He denied having children (see note 6). He told
other evaluators he was born in St. Louis. See, e.g., Tr. 313.
8

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).
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interpretation. Dr. Nanna decided not to administer the WAIS again because plaintiff
had taken it three times since 2006 and scores would not be considered valid. She
instead gave plaintiff the Test of Memory Malingering (TOMM). His scores on this test,
as well as his history, strongly indicated that he was malingering.

Dr. Nanna

diagnosed plaintiff on Axis I as malingering and assessed his GAF at 75.
III. Evidence Submitted to the Appeals Council
Plaintiff submitted an Individualized Education Plan (IEP) completed by the St.
Louis Public Schools in February 2006. (Tr. 333-47). His educational diagnosis was
emotional disturbance. Ms. Walker, plaintiff’s special education teacher, noted that
plaintiff struggled with maintaining pace and had difficulty comprehending presented
material. He had a low frustration tolerance and needed to be reminded to stay on
task. He related appropriately to peers and adults. It was determined that plaintiff
should attend regular education classes a portion of the school week, with special
education instruction focused on math, written language, and reading. (Tr. 341).
Assessment forms from the 2005-06 academic year show that plaintiff made consistent
progress toward his IEP annual goals until February 2006; thereafter, he was assessed
as “not making progress.” (Tr. 336-38). Forms completed in March 2006 reported
that plaintiff’s speech and language were “age appropriate,” he was in the low average
range of cognitive functioning, and his adaptive behaviors were commensurate with
his cognitive ability. His attendance was poor. (Tr. 323-28).
Dr. Mades performed another consultative evaluation on January 27, 2011. (Tr.
353-58). Plaintiff reported that he could not focus and had a “bad memory.” His other
reported symptoms were shaking, fear of the dark, fear that everyone hated him, and
a depressed mood. He stated that he heard voices like cartoon characters. Indeed,
he stated, he had just heard such a voice “a couple of minutes ago.” The voices were
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both inside and outside his head and made him afraid to sleep. He was not on any
medication at the time. Dr. Mades described plaintiff as casually dressed and wellgroomed with hygiene within normal limits. His posture and gait were normal. He was
generally cooperative and alert with good eye contact. His speech was normal in rate
and rhythm and he was spontaneous, coherent, relevant, and logical. Plaintiff’s mood
was euthymic and his affect was slightly restricted but generally appropriate. Dr.
Mades noted that plaintiff’s claimed auditory hallucinations were highly atypical and
equivocal and thus not credible. Plaintiff’s reality testing was adequate and there was
no indication of a thought disorder.
Dr. Mades administered the Miller Forensic Assessment of Symptoms Test (MFAST). Plaintiff’s score on this test was consistent with exaggeration of symptoms
and/or malingering. Plaintiff showed inconsistencies between reported and observed
behaviors, claimed extreme symptoms, endorsed unusual hallucinations, and claimed
unusual symptom combinations. Dr. Mades also administered the WAIS-IV, on which
plaintiff obtained a Full Scale IQ score of 70. He displayed variable persistence and fair
frustration tolerance.

After he was confronted about his effort, his performance

appeared to improve but fell off again. Dr. Mades opined that his effort appeared to
be better than on previous administrations but was still inconsistent and not optimal.
The results therefore were considered to be minimal assessment of plaintiff’s current
level of cognitive functioning, which was within the borderline range of functioning
overall. There were no significant strengths or weaknesses noted. Despite plaintiff’s
claims of memory problems, there was no clear evidence of this issue during the exam.
Dr. Mades administered the TOMM to assess plaintiff’s motivation and effort. He
scored poorly on the test. Dr. Mades diagnosed plaintiff on Axis I with cannabis abuse

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and malingering and on Axis II with antisocial personality disorder. She assessed his
GAF at 85.
Dr. Mades completed a Medical Source Statement. (Tr. 359-61). She found
that plaintiff had no impairment in the ability to understand, remember and carry out
instructions. He had mild impairments in ability to interact appropriately with public,
supervisor, and co-workers, and respond appropriately to usual work situations and
changes in routine work setting.
On February 27, 2012, Rachel Morel, D.O., completed a Mental Residual
Functional Capacity Questionnaire. (Tr. 7-11). Dr. Morel stated that she had seen
plaintiff monthly since October 11, 2011. She diagnosed plaintiff with schizoaffective
disorder and cannabis abuse and assigned him a current GAF of 40; his highest GAF
in the past year was 45. His medications included Invega,9 Celexa, and Cogentin.10
Dr. Morel stated that plaintiff was responding “minimally” to the medications “as his
avolition causes problems with medication adherence.” Dr. Morel described plaintiff
as “very isolative and irritable” as a result of his paranoia, which would affect his
interactions with the public and co-workers. He would miss several days of work a
month due to his avolition.

Dr. Morel endorsed several symptoms: anhedonia;

decreased energy; blunt, flat or inappropriate affect; poverty of content of speech;
mood disturbance; difficulty thinking or concentrating; psychomotor agitation or
retardation; persistent disturbances of mood or affect; paranoid thinking or

9

Invega, or Paliperidone, is an atypical antipsychotic used to treat the symptoms
of schizophrenia. http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a607005.html (last visited on Apr. 10, 2013).
10

Cogentin, or Benztropine Mesylate, is used to treat the symptoms of
Parkinson’s disease and tremors caused by other medical problems or drugs.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682155.html (last visited on
Apr. 10, 2013).
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inappropriate suspiciousness; emotional withdrawal or isolation; perceptual or thinking
disturbances; hallucinations or delusions; catatonic or other grossly disorganized
behavior; pathologically inappropriate suspiciousness or hostility; and oddities of
thought, perception, speech or behavior. Dr. Morel indicated that plaintiff had no
useful ability to function with respect to 24 different abilities or aptitudes and stated
that he was unable to meet competitive standards of neatness and cleanliness. She
also found, however, that he did not have a low IQ or reduced intellectual functioning
and had the capacity to manage his own benefits. She opined that he was not a
malingerer. The Appeals Council noted that Dr. Morel began treating plaintiff well after
the ALJ issued his decision and concluded that her report was not relevant to
determining whether plaintiff was disabled on or before January 10, 2011. (Tr. 2).
IV. The ALJ’s Decision
In the decision issued on January 10, 2011, the ALJ made the following findings:
1.

Plaintiff has not engaged in substantial gainful activity since April 1, 2009,
the application date.

2.

Plaintiff has the following severe impairments: depression and cannabis
dependence.

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 a full range of
work at all exertional levels with the following nonexertional limitations:
he is able to understand, remember, and carry out at least simple
instructions and non-detailed tasks; respond appropriately to supervisors
and co-workers in a task-oriented setting where contact with others is
casual and infrequent; and take appropriate cautions to avoid hazards.
He should not work in a setting that included constant and/or regular
contact with the general public and involved more than infrequent
handling of customer complaints. He should not work at a job which
requires more than limited reading skills.

5.

Plaintiff has no past relevant work.

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6.

Plaintiff was 20 years old, a younger individual, when the application was
filed.

7.

Plaintiff has limited education and can communicate in English.

8.

Transferability of job skills is not an issue because plaintiff does not have
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 plaintiff can perform.

10.

Plaintiff has not been under a disability, as defined in the Social Security
Act, from April 1, 2009.

(Tr. 18-25).
V. Legal Standards
The 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).
In this case, new evidence was submitted to and considered by the Appeals
Council. The regulations provide that the Appeals Council must evaluate the entire
record, including any new and material evidence that relates to the period before the
date of the ALJ’s decision. 20 C.F.R. § 404.970(b); Cunningham v. Apfel, 222 F.3d

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496, 500 (8th Cir. 2000).

The newly submitted evidence becomes part of the

administrative record, even though the evidence was not originally included in the
ALJ’s record.

Id.

This Court does not review the Appeals Council’s denial but

determines whether the record as a whole, including the new evidence, supports the
ALJ’s determination.
To be entitled to disability benefits, a claimant must prove he 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 [his] 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
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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.
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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 his impairment from doing any other work, the
ALJ will find the claimant to be disabled.
VI. Discussion
Plaintiff argues that the ALJ erred in finding that his impairments did not meet
or medically equal a listed impairment; that the ALJ incorrectly determined his residual
functional capacity (RFC); and that the hypothetical posed to the Vocational Expert did
not reflect his actual limitations.
A. Listing 12.05C
Plaintiff argues that the ALJ erred at step 2 of the sequential analysis.

In

particular, he argues that the ALJ erred by failing to properly consider Dr. Amour’s
assessment of plaintiff’s limitations and by failing to explain why plaintiff’s conditions
did not meet or equal the listing for mental retardation, Listing 12.05C.
The ALJ determined that plaintiff did not meet or medically equal any listinglevel impairment, but did not specifically address Listing 12.05C.11 However, there is
no error when an ALJ fails to explain why an impairment does not equal a listed

11

The ALJ did specifically considered the listing for affective disorders, Listing
12.04, and concluded that plaintiff did not meet the criteria, a finding that plaintiff
does not challenge.
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impairments as long as the overall conclusion is supported by the record. Boettcher
v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
Listing 12.05C states as follows:
Mental retardation: Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested
during developmental period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.
The required level of severity for this disorder is met when the requirements of
A, B, C, or D are satisfied.
***
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related
limitation of function.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
Dr. Amour assigned plaintiff a qualifying IQ score of 42. However, as the ALJ
noted, Dr. Amour questioned the validity of the score based, in part, on plaintiff’s poor
effort. Ultimately, Dr. Amour was unable to ascertain whether plaintiff’s cognitive
functioning fell within the mild retardation or the borderline intellectual functioning
range. Similarly, Dr. Mades assigned plaintiff an IQ score of 70, at the top end of the
qualifying range.

However, Dr. Mades described this outcome as a minimum

assessment of plaintiff’s cognitive ability, based on plaintiff’s poor effort.
The record supports a conclusion that these IQ scores are not valid.

The

testers, who had the benefit of observing plaintiff, expressed reservations about his
effort during testing. Neither Dr. Johns or Dr. Morel believed that plaintiff met the
criteria for retardation. Furthermore, education records establish that plaintiff was
diagnosed as emotionally disturbed rather than cognitively impaired or learning
disabled; indeed he was assessed within the low average range of cognitive abilities.
Dr. Amour did not have the benefit of reviewing these records.
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Evidence in the record as a whole supports the conclusion that plaintiff’s
impairments do not meet or medically equal Listing 12.05C.
B. The RFC Determination
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. (citation

omitted). “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)).
Credibility
As part of his RFC analysis, the ALJ addressed plaintiff’s statements regarding
the intensity, persistence and limiting effects of his symptoms and concluded that they
were not entirely credible. (Tr. 23).
In addressing plaintiff’s credibility, the ALJ considered the reports of the
consultative examiners: In 2006, Dr. Johns noted that plaintiff’s functioning at school
had improved since middle school and assigned plaintiff a GAF score of 65, which is
indicative of mild difficulties in functioning. In 2009, Dr. Mades found no evidence of
a mood or thought disorder and assessed plaintiff’s GAF at 75, which is indicative of
slight difficulties in functioning.

In May 2010, Dr. Amour diagnosed plaintiff with

malingering and mild mental retardation versus borderline intellectual functioning and
questioned plaintiff’s account of visual hallucinations. He assigned a GAF of 40, which
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is indicative of major difficulties in functioning.

In September 2010, plaintiff was

admitted to the SLMPC with complaints of worsening symptoms since he had stopped
taking medication. Although he was diagnosed at admission with chronic paranoid
schizophrenia, he was discharged the following day with a diagnosis of depression and
a question of possible malingering in order to obtain disability benefits. In November
2010, Dr. Nanna administered a test for malingering; based on her observations and
the test results, she diagnosed plaintiff with malingering and assigned a GAF of 75.
The ALJ concluded that the consultative evaluations failed to support a finding
of disability. The ALJ noted that no physician ever recommended that plaintiff not seek
employment. Further, plaintiff’s sole psychiatric hospitalization was brief and occurred
when he was noncompliant with medication. The ALJ afforded little weight to the GAF
scores assigned by the medical experts because they were each based on one visit
without the continuity of regular medical care and continuous compliance with
treatment.
Plaintiff argues that the ALJ improperly relied on the report of Dr. Nanna
because she administered the TOMM, a test of malingering. Plaintiff notes that the
Commissioner does not support the use of tests for malingering. However, there is
sufficient support for a finding of malingering absent plaintiff’s results on the TOMM
test.

In particular, Dr. Amour and the discharge physician at SLMPC both cited

possible malingering, based upon their independent observations of plaintiff, without
relying on the TOMM.
The Court finds that substantial evidence in the record as a whole supports the
ALJ’s credibility determination.
The RFC Determination

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The ALJ determined that plaintiff is able to engage in a full range of work with
the nonexertional limitations set forth above. Plaintiff argues that the ALJ discredited
all of the consultative evaluations and thus there is no medical evidence in the record
to support the RFC determination.

However, “the burden of persuasion to prove

disability and demonstrate RFC remains on the claimant.” Vossen v. Astrue, 612 F.3d
1011, 1016 (8th Cir. 2010).

In determining a claimant’s RFC, the ALJ may not

disregard evidence or ignore potential limitations, but is not required “to mechanically
list and reject every possible limitation.” McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir.
2011).
Dr. Amour found that plaintiff had greater nonexertional limitations than the ALJ
did. Plaintiff argues that the ALJ erred in rejecting Dr. Amour’s limitations as they are
consistent with findings by the SLMPC and Dr. Morel. However, as discussed above,
Dr. Amour questioned some elements of plaintiff’s presentation. The SLMPC diagnosis
detracts from plaintiff’s disability claim and Dr. Morel’s findings were made well after
the ALJ’s decision and thus are not relevant to determining whether plaintiff was
disabled for the time period under consideration. More substantively, the record does
not include Dr. Morel’s treatment notes and contemporaneous observations and thus
there is insufficient information supporting her conclusions. Finally, the severity of the
impairments as found by Dr. Morel are inconsistent with her assessment that he has
the capacity to manage his own benefits.
Plaintiff’s contention that there is no evidence in the record to support the ALJ’s
RFC determination is incorrect as the RFC determination is consistent with the
educational records. Plaintiff’s claim that his RFC was improperly determined will be
denied.
C. The Hypothetical Submitted to the Vocational Expert
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Plaintiff argues that the hypothetical submitted to the vocational expert did not
accurately reflect his impairments and thus the ALJ should not have relied on her
testimony.

A hypothetical is sufficient if it sets forth impairments supported by

substantial evidence in the record and accepted as true by the ALJ.

Davis v. Apfel,

239 F.3d 962, 966 (8th Cir. 2001). The Court has determined that the ALJ’s RFC
determination is supported by substantial evidence and thus rejects plaintiff’s
challenge to the hypothetical.
VII. 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 decision of the Commissioner is affirmed.
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 26th day of June, 2013.

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