Flanigan v. Astrue

Filing 27

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on December 3, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MOLLY FLANIGAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant,

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Case No. 4:12 CV 1706 CDP

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Molly Flanigan’s application for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et
seq. and supplemental security income benefits under Title XVI of the Act, 42
U.S.C. §§ 1381 et seq. Flanigan claims she is disabled because she suffers from
bipolar disorder, attention deficit hyperactivity disorder (ADHD), and learning
disabilities. Flannigan filed an earlier action challenging the denial, but the
Commissioner requested remand for an additional hearing. After the second
hearing, the Administrative Law Judge again concluded Flanigan was not disabled.
Because I conclude that the ALJ’s decision is supported by substantial evidence, I
will affirm the decision.

Procedural History
Flanigan filed her application for disability insurance benefits and
supplemental security income on June 28, 2007. She was seventeen years old at
the time. The initial onset date alleged was November 4, 1994, but was later
amended to November 4, 2004. On October 30, 2007, the Social Security
Administration denied Flanigan’s application. Flanigan requested a hearing, and
on March 10, 2009, Flanigan and her mother appeared and testified at a hearing
before an ALJ. No vocational expert testified at the hearing.
On April 1, 2009, the ALJ issued an opinion upholding the denial of
benefits. Flanigan appealed to the Social Security Appeals Council. The Appeals
Council denied the request for review and Flanigan filed her first suit in this court
for review of that decision. Case No. 4:10CV18 TCM. At the Commissioner’s
request, the case was remanded so the ALJ could obtain vocational expert
evidence. On March 17, 2011, the ALJ conducted the supplemental hearing where
Flanigan, her mother, and a vocational expert testified. On April 7, 2011, the ALJ
again determined Flanigan was not disabled. The Appeals Council denied
Flanigan’s request for review, thereby adopting the ALJ’s decision as the final
decision of the Commissioner.
Flanigan again seeks judicial review of the denial. She argues that the
decision of the ALJ is not supported by substantial evidence because: (1) the ALJ

2

failed to cite to substantial medical evidence to support his Residual Functional
Capacity finding; and (2) the hypothetical question to the vocational expert did not
capture the concrete consequences of Flanigan’s impairment.
Medical Records
On November 4, 2004, Flanigan was admitted to St. John’s Hospital for
evaluation and treatment because of reported rebellious and oppositional behavior.
Dr. Emel Sumer, M.D., diagnosed Flanigan with bipolar disorder, mixed type, and
ADHD. Flanigan was prescribed Risperdal1, Inderal2, and Adderall.
In October 2005, Flanigan was administered a Wechsler Intelligence Scale
Test for Children by a school psychologist. The test determined Flanigan had a
full-scale IQ of 80, a verbal-comprehension index of 85, a perceptual-reasoning
index of 84, and a working memory index of 68.
Two years later, the Special School District developed an Individualized
Education Plan for Flanigan. The plan educationally diagnosed Flanigan as
learning disabled in the area of written expression. The plan also determined
Flanigan was language impaired in semantics and pragmatics and emotionally
disturbed. Additionally, it was determined Flanigan’s cognitive functioning was in
the low average range. The report indicated Flanigan’s learning disability in
1

Risperdal is a psychotropic drug indicated for the treatment of schizophrenia and bipolar
disorder. See Physician’s Desk Reference, 1676–77 (61st ed. 2007).
2
Inderal is a synthetic beta-adrenergic receptor-blocking agent indicated for the treatment of
common migraine headaches. Id. at 3429.
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written language caused her to struggle with written directions and organizational
skills; Flanigan’s language impairment resulted in difficulties with oral instruction
and staying on task with written activities; and Flanigan’s emotional disturbance
caused her difficulties with following directions or expectations, staying on task,
completing tasks, and appropriate social interaction.
On April 19, 2007, Flanigan was admitted to an in-patient mental-health
program at St. Joseph’s Health Center. Flanigan was hospitalized because of a
text-message she sent to a friend stating she wanted ―to end it.‖ Flanigan denied
having a suicide plan. It was reported that Flanigan’s grades were falling, she was
having problems concentrating, and was experiencing anxiety and decreased
interest in school and sports. Flanigan was diagnosed with major depressive
disorder, generalized anxiety disorder, and a history of ADHD. After receiving
medication and counseling, Flanigan’s condition improved. Prior to being
discharged, Flanigan received a Global Assessment of Functioning3 (GAF) score
of 50 and was instructed to follow up with a psychiatrist named Dr. Srinivas
Battula, M.D..

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The GAF is a numeric scale ranging from zero to one hundred used to rate social, occupational,
and psychological functioning ―on a hypothetical continuum of mental health-illness.‖
Diagnostic & Statistical Manual of Mental Disorders, 32 (4th ed. Am. Psychiatric Ass’n 1994)
[hereinafter DSM—IV]. A GAF of 61 to 70 indicates ―some difficulty in social, occupational, or
school functioning….‖ Id. A GAF of 61 to 70 indicates ―some difficulty in social, occupational,
or school functioning, but generally functioning pretty well.‖ Id.
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Flanigan’s first visit with Dr. Battula was on June 19, 2007. Dr. Battula
recommended individual therapy for possible depression and bipolar disorder.
Since Flanigan was pregnant, Dr. Battula recommended medications only after she
delivered.
Dr. Battula saw Flanigan for a follow-up appointment on August 1, 2007.
Dr. Battula found that Flanigan had a good mood, was logical and goal directed,
and had good/fair insight and judgment. Dr. Battula diagnosed Flanigan with
bipolar affective disorder, ADHD, and assessed a GAF score of 55.
On October 29, 2007, R. Rocco Cottone, Ph.D., a non-examining consultant,
completed a Mental Residual Functional Capacity Assessment. Based on the
records, Dr. Cottone determined that Flanigan had marked limitations in the ability
to understand and remember detailed instructions and the ability to carry out
detailed instructions. She had moderate limitations in the ability to maintain
attention and concentration for extended periods; the ability to sustain an ordinary
routine without special supervision; the ability to work with others without being
distracted; the ability to complete a normal workday and workweek and to perform
at a consistent pace; the ability to interact appropriately with the general public; the
ability to accept instructions and respond appropriately to criticism; the ability to
get along with coworkers; the ability to travel in unfamiliar places or use public
transportation; and the ability to set realistic goals or make independent plans. He
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concluded that she should avoid work involving intense or extensive interpersonal
interaction; handling complaints or dissatisfied customers; and close proximity to
co-workers. He found that she could understand, remember, carry out and persist
at simple tasks; make simple work-related judgments; relate adequately to coworkers or supervisors; and adjust adequately to ordinary changes in work routines
or settings. Her restrictions of activities of daily living were therefore mild; she
had moderate difficulties in maintaining social functions and concentration,
persistence or pace; and she had one or two episodes of decompensation of
extended duration.
At the same time Dr. Cottone completed a Childhood Disability Evaluation
Form for Flanigan. He concluded that she had no marked limitations. She had less
than marked limitations in the areas of acquiring and using information, attending
and completing tasks, interacting and relating with others, and caring for herself,
and no limitations in moving about and manipulating objects.
Flanigan saw Dr. Battula on November 7, 2007, January 28, 2008, July 19,
2008, and February 4, 2009. On these visits, Dr. Battula diagnosed Flanigan with
bipolar affective disorder, major depression disorder, and ADHD. Additionally,
Dr. Battula assessed GAF scores of 55, 60, 70, and 60, respectively.
Dr. Battula filled out a Mental Residual Functional Capacity Questionnaire
on March 12, 2009. He reported Flanigan’s symptoms as anhedonia, decreased
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energy, feelings of guilt or worthlessness, generalized persistent anxiety, mood
disturbances, difficulty thinking or concentrating, persistent disturbances of mood
or affect, and apprehensive expectations. Dr. Battula determined Flanigan was
unable to meet competitive standards in maintaining regular attendance and being
punctual within customary, strict tolerances; accepting instructions and responding
appropriately to criticism from supervisors; dealing with normal work stress;
carrying out detailed instructions; setting realistic goals or making plans
independently of others; and dealing with stress of semi-skilled and skilled work.
Dr. Battula estimated that Flanigan’s impairments or treatment would cause her to
be absent from work around three times per month.
After the first denial of benefits in 2009 and before the second hearing on
March 17, 2011, Flanigan received no additional medical treatment.
Testimony Before the ALJ
At the first ALJ hearing on March 10, 2009, Flanigan stated she was
nineteen years old and expected to graduate high school within a few months. She
was taking regular classes but received additional help in a resource room. She
participated in a co-op program that included working twenty to twenty-five hours
a week at a McDonalds. From June 2006 until September 2007 she had worked
thirty to thirty-five hours a week at a nursing home as a food server. Flanigan
obtained this job competitively, but quit after she moved. Additionally, Flanigan
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explained she had times where she had lots of energy and difficulty sleeping and
also times where she is depressed. Flanigan testified that her condition made it
difficult for her to get along with people. She also said that she often needs people
to repeat things for her. Flanigan stated that she enjoyed playing basketball,
hanging out with her friends, and her household chores that included dishes,
laundry, and occasionally grocery shopping with her mother.
Flanigan’s mother also testified at the first hearing and stated that Flanigan
used to hide her pills in planters, but as far as she knew her daughter has taken her
medication for the past year. Flanigan’s mother also testified that Flanigan seemed
confused all the time, could not follow directions, got into fights at school, was
involved in the emotional lives of her friends, and required reminders to do things.
At the supplemental hearing on March 17, 2011, Flanigan, her mother, and a
vocational expert testified. Flanigan stated that she had graduated high school and
was no longer working at McDonalds. She said she quit working at McDonalds
because of her daily arguments with co-workers. After leaving McDonalds,
Flanigan briefly worked at a Jack in the Box. Flanigan stated she was not currently
taking any medications or seeing any doctors but that she was looking ―here and
there‖ for a doctor. The reason, Flanigan claimed, for not finding a doctor was that
she was ―picky.‖

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Flanigan’s mother testified that she was concerned by Flanigan’s depression.
She stated that Flanigan now has two children, and that Flanigan never interacts
with the children. Her mother then clarified that Flanigan takes care of the two
children while her mother is at work, but not when she is home. She also indicated
that the children showed no signs of abuse or neglect. Additionally, Flanigan
jumped out of a moving car when her mother tried to take her to the doctor.
Flanigan’s mother also stated Flanigan was ―hooked‖ on her cell phone and goes
out with friends ―almost every day.‖
The ALJ heard testimony from Brenda Young, a vocational expert. The
ALJ questioned Mrs. Young about a hypothetical person of the same age,
experience, education, and residual functional capacity as Flanigan. The
vocational expert testified that such a person could perform the representative jobs
of hand packer, laundry worker, and housekeeper. Additionally, Mrs. Young
testified these jobs were available in the St. Louis metro area.
Flanigan’s attorney asked whether a hypothetical person who is unable to
meet competitive standards and would miss three days of work each month could
perform any competitive employment. Mrs. Young responded that no such jobs
exist.

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Legal Standard
A reviewing court’s role is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. Pearsall
v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). ―Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find it adequate to
support‖ the ALJ’s determination. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.
2010) (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)) (internal
quotation marks omitted). The court will consider evidence both supporting and
detracting from the Commissioner’s findings, however, if it is possible to draw two
inconsistent positions from the evidence and one supports the Commissioner’s
findings, then the denial of benefits must be affirmed. Id.
To determine whether a decision is supported by substantial evidence, the
court is required to review the administrative record as a whole to consider:
1) the credibility findings made by the Administrative Law Judge;
2) the education, background, work history, and age of the claimant;
3) the medical evidence from treating and consulting physicians;
4) the plaintiff’s subjective complaints relating to the exertional and nonexertional impairments;
5) any corroboration by third parties of the plaintiff’s impairments; and
6) the testimony of vocational experts, when required, which is based on a
proper hypothetical question.
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Brand v. Secretary of Dep’t of Health Educ. & Welfare, 623 F.2d 523, 527 (8th
Cir. 1980).
Social security regulations define disability as the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months. 42
U.S.C. § 416(i)(l); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20 C.F.R.
§ 416.905(a).
Determining whether a claimant is disabled requires the Commissioner to
evaluate the claim based on a five-step procedure. 20 C.F.R. § 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011)
(discussing the five-step process).
First, the Commissioner must decide whether the claimant is engaging in
substantial gainful activity. If so, she is not disabled.
Second, the Commissioner determines if the claimant has a severe
impairment which significantly limits the claimant's physical or mental ability to
do basic work activities. If the impairment is not severe, the claimant is not
disabled.
Third, if the claimant has a severe impairment, the Commissioner evaluates
whether it meets or exceeds a listed impairment found in 20 C.F.R. Part 404,
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Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1, the
Commissioner will find the claimant disabled.
Fourth, if the claimant has a severe impairment and the Commissioner
cannot make a decision based on the claimant's current work activity or on medical
facts alone, the Commissioner determines whether the claimant can perform past
relevant work. If the claimant can perform past relevant work, she is not disabled.
Fifth, if the claimant cannot perform past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, she is declared disabled. 20 C.F.R. § 404.1520; § 416.920.
The Commissioner has supplemented the five-step sequential process for
evaluating a claimant's eligibility for benefits with additional regulations dealing
specifically with mental impairments. 20 C.F.R. § 404.1520a. As relevant here,
the procedure requires an ALJ to determine the degree of functional loss resulting
from a mental impairment. The ALJ considers loss of function in four capacities
deemed essential to work. 20 C.F.R. § 404.1520a(c)(2). These capacities are: (1)
activities of daily living; (2) social functioning; (3) concentration, persistence or
pace; and (4) deterioration or decompensation in work or work-like settings. 20
C.F.R. § 404.1520a(c)(3). After considering these areas of function, the ALJ rates
limitations in the first three areas as either: none; mild; moderate; marked; or
extreme. The degree of limitation in regard to episodes of decompensation is
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determined by application of a four-point scale: none; one or two; three; or four or
more. See 20 C.F.R. § 404.1520a(c)(4).
The ALJ’s Findings
Applying the five-step sequential evaluation, the ALJ first determined
Flanigan was not engaging in any substantial gainful activity. Although Flanigan
worked after the established disability onset date, this work activity did not rise to
the level of substantial gainful activity.
Proceeding to step two, the ALJ determined Flanigan had severe
impairments including bipolar disorder, ADHD, and learning disabilities. The
analysis of this step was fully addressed in the ALJ’s first opinion and incorporated
by the ALJ’s second opinion after the supplemental hearing.
At step three, the ALJ determined Flanigan did not have an impairment or
combination of impairments meeting or medically equaling one found in the
Listings. The ALJ supported this finding by Flanigan’s own attorney stipulating
during the initial hearing that none of Flanigan’s impairments met or equaled any
listed impairment.
The ALJ found Flanigan did not meet the ―paragraph B‖ criteria (―paragraph
D‖ criteria of Listing 12.05) because her impairments did not cause at least two
―marked‖ limitations or one ―marked‖ limitation and ―repeated episodes of
decompensation.‖ The ALJ also determined the ―paragraph B‖ criteria for Listing
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12.05 were not met since Flanigan did not have a valid verbal, performance, or full
scale IQ of 59 or less. Lastly, the ―paragraph C‖ criteria in Listing 12.05 were not
met because Flanigan did not have a valid verbal, performance, or full scale IQ of
60 through 70.
In considering Flanigan’s functional limitations, the ALJ found Flanigan had
the following limitations: mild restrictions on activities of daily living; moderate
difficulties maintaining social functioning; moderate difficulties maintaining
concentration, persistence, and pace; and one or two episodes of decompensation
of extended duration. In making this determination, the ALJ considered the
Mental Residual Functional Capacity Questionnaire by Dr. Battula, but the ALJ
did not agree with Dr. Battula’s conclusions.
At step four, the ALJ determined Flanigan had the residual functional
capacity to perform work at all exertional levels, but was limited to unskilled work
requiring only occasional contact with the public. The ALJ found evidence of an
underlying impairment that could reasonably cause some of Flanigan’s symptoms.
However, the medical evidence did not demonstrate medical signs or findings that
could reasonably produce all the symptoms and limitations that Flanigan alleged.
The ALJ pointed to Flanigan’s lack of consistent treatment by a mental health
professional and not taking medications during a period of alleged disability as
inconsistent with the severe limitations alleged.
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The ALJ gave little weight to Dr. Battula’s opinions for several reasons.
First, the ALJ determined Dr. Battula’s opinions were inconsistent with the
doctor’s own treating notes and GAF scores for Flanigan. The ALJ found Dr.
Battula’s opinions were based, in large part, on the subjective report of symptoms
and limitations given by Flanigan. Additionally, the ALJ determined Dr. Battula’s
opinions were conclusory with little explanation of the medical evidence relied
upon in forming the opinion. Lastly, Dr. Battula’s assessment form was
considered by the ALJ to be vague and non-specific.
The ALJ gave more weight to the State agency medical consultant’s
assessments, which included a Psychiatric Review Technique form. Dr. Cottone
found Flanigan had organic and affective mental disorders. Flanigan’s organic
mental disorders included ADHD and a learning disorder by history. Dr. Cottone
determined Flanigan’s functional limitations to include the following: mild
restrictions of activities of daily living; moderate difficulties maintaining social
functioning; moderate difficulties maintaining concentration, persistence, and pace;
and no episodes of decompensation of extended duration. Dr. Cottone also
indicated Flanigan’s marked limitations in her ability to understand, remember,
and carry out detailed instructions. The ALJ determined Dr. Cottone’s findings
were consistent with the evidence as a whole.

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The ALJ discredited most of Flanigan’s description of her limited daily
activities. The ALJ determined it was difficult to attribute Flanigan’s allegedly
limited daily activities to her medical condition because the medical evidence in
the record was relatively weak. The ALJ pointed to evidence such as Flanigan’s
previous job at the nursing home, her ability to care for two small children, and her
ability to socialize with friends as inconsistent with her alleged limitations. The
ALJ also considered Flanigan’s unpersuasive appearance and demeanor while
testifying as inconsistent with her alleged limitations. For instance, the ALJ noted
Flanigan had no difficulty in understanding or responding to questions. However,
the ALJ stated this was only one of many factors being relied upon in determining
Flanigan’s credibility and residual functional capacity.
The ALJ discredited the testimony by Flanigan’s mother as possibly biased
due to her financial interest in the matter and based completely on Flanigan’s
subjective complaints.
In conclusion, the ALJ determined Flanigan had medically determinable
impairments that could reasonably be expected to cause the alleged symptoms,
however, Flanigan’s statements regarding intensity, persistence, and limiting
effects of those symptoms were not entirely credible.
At step five, the ALJ found that Flanigan had no past relevant work.
However, in considering Flanigan’s age, education, work experience, and residual
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functional capacity, the ALJ determined Flanigan could perform the jobs of hand
packer, laundry worker, or housekeeper. All of these jobs were found to exist in
the national economy. In coming to this determination, the ALJ relied on the
vocational expert’s response to his hypothetical question. The ALJ discredited as
unsupported by credible evidence the hypothetical question posed by Flanigan’s
attorney.
Discussion
In reviewing the denial of Social Security benefits a court must determine
whether there is substantial evidence on the record to support the ALJ’s decision.
42 U.S.C. 405(g). Flanigan argues that substantial evidence is lacking because:
(1) the ALJ failed to support his residual functional capacity conclusion with
medical evidence; and (2) the ALJ failed to capture the concrete consequences of
Flanigan’s impairments in his hypothetical question. She argues that the ALJ
improperly discounted her treating physician’s opinions while giving more weight
to the State agency’s non-examining physician. In making this argument, Flanigan
cites to Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001) and Singh v. Apfel, 222 F.3d
448 (8th Cir. 2000).
The Treating Physician’s Opinion
In Singh, the Eight Circuit concluded the ALJ, in determining the claimant’s
RFC, improperly discredited the treating physician’s opinion. 222 F.3d at 453. In
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that case, the ALJ found the treating physician’s opinion was not supported by
objective evidence but instead was largely based on the claimant’s subjective
complaints of pain. Id. at 452. No other reason or explanation was given to why
the treating physician’s opinion was discredited. Id. The Eight Circuit stated a
treating physician’s opinion will be granted controlling weight, provided the
opinion is well-supported and not inconsistent with other substantial evidence on
the record. Id. The court found the treating physician’s opinion was well supported
and not inconsistent with other substantial evidence. Id. Therefore, the ALJ erred
in discrediting the treating physician’s opinion. Id.
Singh does not control this case. In Singh, the court noted that the treating
physician’s opinion will be given controlling weight if the opinion is well
supported and not inconsistent with other substantial evidence. In that case, the
ALJ did not explain in detail the reasons for discrediting the treating physician’s
opinion. Here, the ALJ explained in great detail why little weight should be given
to Dr. Battula’s opinion.
The ALJ pointed out that Dr. Battula’s opinion was not only internally
inconsistent but was also inconsistent with other medical evidence. For instance,
Dr. Battula stated in his opinion that Flanigan had persistent disturbances of mood
or affect along with a sad and anxious demeanor. Nevertheless, Dr. Battula

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consistently reported in his treatment notes that Flanigan had a good mood and
indicated normal mental-status examinations.
Additionally, Dr. Battula’s opinion that Flanigan cannot perform some of the
tasks associated with unskilled work is inconsistent with the doctor’s own GAF
scores given to Flanigan during her examinations. Dr. Battula consistently
assigned Flanigan GAF scores of 60 to 70 during her examinations. These scores
do not suggest the more extreme limitations in Dr. Battula’s opinion but instead are
consistent with mild to moderate symptoms.
Dr. Battula determined Flanigan could not satisfactorily perform the
following activities on a sustained basis in a regular work setting: maintain regular
attendance; accept instructions; deal with work stress; carry out detailed
instructions; set realistic goals; make plans independently; and handle the stress of
semiskilled and skilled work. However, Dr. Battula also determined Flanigan
could satisfactorily do the following: remember work-like procedures; understand,
remember, and carry out very short and simple instructions; make simple workrelated decisions; perform at a consistent pace without an unreasonable number
and length of rest periods; make simple requests or request assistance; be aware of
normal hazards and take appropriate precautions; interact appropriately with the
general public; maintain socially appropriate behavior; and adhere to basic
standards of neatness and cleanliness. Dr. Battula’s opinion is that Flanigan cannot
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perform some of the requirements of unskilled work. However, the doctor’s
opinion of Flanigan’s limitations really only pertains to skilled and semi-skilled
work. Therefore, Dr. Battula’s opinion is internally inconsistent. Even if Dr.
Battula’s more extreme limitations are taken as accurate, the ALJ’s RFC
determination for unskilled labor is still consistent with those limitations.
Additionally, the ALJ determined Flanigan’s opinion was conclusory with
very little explanation of medical evidence relied upon in forming the opinions.
Flanigan claims that this is incorrect because Dr. Battula’s opinion contained
specific signs and symptoms associated with his conclusions. Though this is true
with regard to some of Dr. Battula’s examinations, Dr. Battula did not generally
explain what medical evidence he relied on in forming his opinions.
Lastly, as the ALJ pointed out, Flanigan’s alleged onset date is in 2004, but
she did not begin seeing Dr. Battula until 2007. Therefore, Dr. Battula’s medical
opinion only covers Flanigan’s condition after 2007. Furthermore, Dr. Battula’s
last treated Flanigan in 2009, and therefore the doctor’s opinion only covers from
2007 to 2009.
A treating physician’s opinion is usually given controlling weight, however,
an ALJ may discredit such an opinion if it is inconsistent with other substantial
evidence in the record. Cox, 471 F.3d at 907. Here, the ALJ properly found Dr.
Battula’s opinion was internally inconsistent, inconsistent with his treatment notes,
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and inconsistent with the medical evidence as a whole. Therefore, it was not
improper for the ALJ to discredit Dr. Battula’s opinion.
The ALJ Discrediting Flanigan’s Subjective Complaints
The ALJ also determined Dr. Battula’s opinion to be discredited because it
was based on Flanigan’s subjective complaints instead of medical evidence.
Although the ALJ did not expressly mention the Polaski factors, it is evident from
the ALJ’s decision that such factors were analyzed. For instance, the ALJ noted
Flanigan’s daily activities such as caring for her two children and social activities
with friends were inconsistent with the severity of her claims. Additionally,
Flanigan claimed she could not work because of her difficulty concentrating and
getting along with others, however, Flanigan was able to work competitively at a
nursing home and only left because she moved.
The ALJ also considered Flanigan’s lack of continuous medical treatment
and not taking medications as inconsistent with her claims of a severe mental
impairment.
Lastly, the ALJ found Flanigan’s medical record, including treatment notes
and GAF scores, were inconsistent with her claimed severe mental impairments.
For example, Flanigan’s treatment notes regularly demonstrated normal mentalstatus examinations. Additionally, Flanigan received consistent GAF scores of 55–
70, which only indicates mild or moderate limitations.
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Therefore, the ALJ properly discredited Flanigan’s subjective complaints of
a severe mental impairment.
The ALJ’s RFC Determination
In Lauer, the Eighth Circuit determined the ALJ failed to cite ―some medical
evidence‖ in making his RFC determination. 245 F.3d at 704. In that case, the
ALJ rejected the treating physicians’ opinions and instead relied solely upon the
opinion of a prior treating psychiatrist in determining the claimant’s RFC. Id.
However, the prior treating psychiatrist was never asked to express an opinion
about the claimant’s ability to participate in work-related activities. Id. at 705.
Therefore, the prior psychiatrist’s opinion was not considered ―some medical
evidence‖ because it did not relate to the claimant’s ability to participate in workrelated activities. Id. Thus, the ALJ erred in basing his RFC determination on this
evidence. Id.
Lauer does not apply to this case. First, in Lauer the non-examining
physician’s opinion was not considered ―some medical evidence‖ because the
physician was never asked to comment on the claimant’s ability to participate in
work-related activities. Here, the ALJ did rely on ―some medical evidence‖ in
determining Flanigan’s RFC. The ALJ in making his RFC determination
considered the entire record, including Flanigan’s medical records, Flanigan’s
testimony, and the medical opinions of record.
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Flanigan’s medical records support the ALJ’s RFC determination that
Flanigan could perform unskilled work. For instance, the ALJ noted Flanigan
consistently received GAF scores between 60 and 70, reflecting only mild to
moderate limitations. An ALJ may consider GAF scores in determining a
claimant’s RFC, however, such scores are not considered dispositive. Halverson v.
Astrue, 600 F.3d 922, 930–31 (8th Cir. 2010). The ALJ also found Flanigan’s
consistently normal mental-status examinations supported the RFC determination.
Though the ALJ discredited much of Flanigan’s complaints of the severity
of her mental impairments, the ALJ’s RFC determination reflects some of those
impairments. For instance, Flanigan’s RFC is limited to only occasional contact
with the public, therefore incorporating Flanigan’s alleged inability to work with
other people. Additionally, the ALJ’s limitation to unskilled work reflects
Flanigan’s mental impairment complaints.
The ALJ also relied upon the opinion of Dr. Cottone in determining
Flanigan’s RFC. Dr. Cottone determined Flanigan could understand, remember,
carry out, and persist at simple tasks; make simple work-related decisions; relate
adequately to co-workers and supervisors; and adjust adequately to ordinary
changes in work routine or setting. As the Commissioner points out, these
limitations are consistent with unskilled work defined under 20 C.F.R.
§§404.1568(a), 416.968(a). As pointed out by the Commissioner, an ALJ may rely
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on a non-examining physician’s opinion when the record contains no credible
opinion from a treating source. See Hacker v. Barnhart, 459 F.3d 934, 939 (8th
Cir. 2006). As determined above, the ALJ properly discredited Dr. Battula’s
opinion.
The ALJ’s reliance on Flanigan’s treatment notes, Flanigan’s own
testimony, and the opinion of Dr. Cottone constitutes substantial evidence
supporting the ALJ’s RFC determination. Furthermore, the ALJ’s consideration of
Flanigan’s treatment notes and Dr. Cottone’s opinion constitutes ―some medical
evidence‖ in support of the ALJ’s RFC determination.
ALJ’s Listing of Impairments Decision
Flanigan claims that if Dr. Cottone’s report is accepted and held generally
consistent with the evidence of record, then the ALJ’s decision with regard to the
listing of impairments is called into question. Flanigan argues that Dr. Cottone’s
opinion as to Flanigan’s borderline intellectual functioning along with her working
memory IQ of 68 suffices to establish Listings 112.05 and 12.05 for intellectual
disability.
To meet Listing 112.05D or 12.05C, Flanigan has to demonstrate the
following factors: (1) a ―valid verbal, performance, or full scale IQ of 60 through
70‖; and (2) ―a physical or other mental impairment imposing an additional and
significant work-related limitation of function‖ See 20 C.F.R. pt. 404, subpt. P,
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app. 1, §§ 12.05, 12.05C, 112.05, 112.05D. When Flanigan was fifteen years old a
Weschler Intelligence Scale for Children determined Flanigan had a full-scale IQ
of 80. Flanigan’s argument that her working memory score of 68 on the Weschler
Intelligence Test qualifies her under 112.05D and 12.05C is simply wrong, as the
Listings require a ―verbal, performance, or full scale IQ of 60 through 70.‖
Flanigan received a full-scale score of 80, a verbal-comprehension score of 85, and
a perceptual-reasoning index of 84, thereby excluding her from Listing 112.05D
and 12.05C. Additionally, Dr. Battula determined Flanigan did not have a low IQ
or any reduced intellectual functioning and Dr. Cottone specifically found Flanigan
did not meet the requirements for intellectual disability under the Listings.
Along with not being able to show the required IQ score under 12.05C and
112.05D, Flanigan failed to demonstrate any deficits in adaptive functioning.4 As
the Commissioner points out, Flanigan graduated from high school, worked parttime, had friends, and cared for her children during the day. These findings are
inconsistent with deficits in adaptive functioning.
Whether ALJ’s Hypothetical Question Captured Concrete Consequences of
Impairment
The ALJ asked the vocational expert whether a hypothetical claimant with
the same residual functional capacities as Flanigan could perform jobs available in

4

Under 12.05 and 112.05 the claimant must show a deficit in adaptive functioning manifested
during the developmental period.
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the national economy. The vocational expert responded that a claimant with
Flanigan’s residual functional capacity could perform the representative jobs of
hand packer, laundry worker, and housekeeper. Additionally, the ALJ discredited
the hypothetical question by Flanigan’s attorney as unsupported by the evidence.
The question asked whether a person who is unable to meet competitive standards
and would miss three days of work a month could perform the above jobs.
―The ALJ’s hypothetical question to the vocational expert needs to include
only those impairments that the ALJ finds are substantially supported by the record
as a whole.‖ Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (citing Lacroix
v. Barhart, 465 F.3d 881, 889 (8th Cir. 2006)).
Here, as noted above, the ALJ relied upon substantial evidence along with
some medical evidence in determining Flanigan’s RFC. The hypothetical was then
based on that RFC, and was therefore proper and included the appropriate
limitations. The ALJ was not required to include limitations that he did not find
supported by the evidence, and therefore his rejection of the question posed by
Flanigan’s counsel was not error.
Conclusion
Because the ALJ’s determination that Flanigan suffers no disability is
supported by substantial evidence, I will affirm the decision of the Commissioner.
Accordingly,
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IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed. A separate judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of December, 2013.

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