Evans v. Social Security Administration

Filing 27

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed and this action is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Thomas C. Mummert, III on December 26, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN EVANS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:13cv0107 TCM

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying John Evans’ application for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401-433. All matters are
pending before the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
Procedural History
Plaintiff John Evans filed his application for disability insurance benefits (DIB) on
June 3, 2010, alleging that he had become disabled on May 11, 2010, because of epilepsy,
asthma, depression, fear of leaving the house, inability to socially interact, and
confusion/disorientation related to epilepsy. (Tr. 98-104, 120.) On July 10, 2010, the
Social Security Administration denied Plaintiff’s claim for benefits. (Tr. 42, 43, 44-47.)
Upon Plaintiff’s request, a hearing was held before an administrative law judge (ALJ) on
August 10, 2011, at which Plaintiff and a vocational expert testified. (Tr. 20-34.) On

October 25, 2011, the ALJ issued a decision denying Plaintiff’s claim for benefits, finding
Plaintiff able to perform his past relevant work as a fast food assistant manager and fast
food cashier. (Tr. 5-19.) On November 13, 2012, the Appeals Council denied Plaintiff’s
request for review of the ALJ's decision. (Tr. 1-4.) The ALJ's determination thus stands
as the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, Plaintiff contends that the ALJ’s decision
is not supported by substantial evidence on the record as a whole. Specifically, Plaintiff
argues that the ALJ erred by failing to find his mental impairment to be severe. Plaintiff
further argues that the ALJ erred in failing to consider the effects of his mental
impairment in determining his residual functional capacity (RFC).

Finally, Plaintiff

contends that the ALJ erred in discounting the opinions and observations of his treating
psychiatrist, Dr. Liss. Plaintiff requests that the final decision be reversed and that he be
awarded benefits, or that the matter be remanded for further consideration.
1Because the ALJ committed no legal error and substantial evidence on the record
as a whole supports the ALJ’s decision, the Commissioner’s final decision that Plaintiff
was not disabled is affirmed.1
Relevant Testimonial Evidence Before the ALJ
At the hearing on August 10, 2011, Plaintiff testified in response to questions
posed by the ALJ and counsel.
The undersigned has reviewed the entirety of the administrative record in determining whether
the Commissioner’s adverse decision is supported by substantial evidence. Inasmuch as Plaintiff
challenges the decision only as it relates to his mental impairment and not as it relates to any
physical impairment, the recitation of specific evidence in this Memorandum and Order is
limited to only that evidence relating to the issues raised by Plaintiff in this action.
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At the time of the hearing, Plaintiff was twenty-six years of age.

Plaintiff

graduated from high school. (Tr. 22.) Plaintiff lives alone in an apartment near his
parents. (Tr. 30.)
Plaintiff’s Work History Report shows that Plaintiff worked as a pizza delivery
driver from August 2003 to June 2004. From July 2004 to January 2005, Plaintiff worked
as a vendor at a home improvement store. From February 2005 to March 2006, Plaintiff
worked as salesman for a newspaper distributor. From June 2006 to December 2008,
Plaintiff worked as a laborer for a fence company. (Tr. 128.) Plaintiff testified that he
also worked at a fast food restaurant as a cashier from 2001 to 2003, where he also
worked as an assistant manager from March 2008 to October 2009. (Tr. 22-23, 128.)
Plaintiff testified that he was terminated from this last job because he was unable to
consistently show up for his work shifts. Plaintiff testified that he has not sought other
employment. (Tr. 22-24.)
Plaintiff testified that he is being treated for depression and that his
psychotherapist, Dr. Gergeceff, advised him that he was unable to work in his current
condition. Plaintiff testified that he visits Dr. Gergeceff every two or three months after
which Dr. Gergeceff consults with Plaintiff’s psychiatrist, Dr. Liss, for medication
therapy. Plaintiff testified that Dr. Liss recently changed his medication from an antidepressant to a mood stabilizer because the anti-depressant caused him to have severe
mood swings whereby he would experience happiness and then aggressiveness and anger.
Plaintiff testified that he was currently taking Xanax for severe anxiety, which helps his
condition, but that the medication causes drowsiness and fatigue. Plaintiff testified that
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he also experiences crying spells. (Tr. 27, 29-30.)
Plaintiff testified that he has had numerous seizures since 2006, with his last
seizure having occurred in May 2010. (Tr. 24.)
As to his daily activities, Plaintiff testified that he takes his medication, feeds his
fish, and performs chores. Plaintiff testified that he takes naps because his medication
causes drowsiness. Plaintiff testified that his hobbies include writing and painting.
Plaintiff testified that he drinks socially. (Tr. 24, 28-29.)
At the conclusion of the hearing, the ALJ determined to hold the matter open for
an additional thirty days to provide counsel the opportunity to retrieve records from
Plaintiff’s psychotherapist, whom counsel was unaware had provided treatment to
Plaintiff. (Tr. 31, 34.)
Relevant Medical Evidence Before the ALJ
Plaintiff visited Dr. John J. O’Keefe, a neurologist, in September 2008 and
September 2009 for follow up of his seizure condition. It was noted during these visits
that Plaintiff had not had a seizure since January 2006. Plaintiff reported no complaints
during these visits.

Mental status examinations were normal, with Dr. O’Keefe

specifically noting Plaintiff to be alert and oriented to person, place, and time; and to have
normal memory, concentration, attention span, auditory comprehension, fund of
knowledge, affect, and judgment. (Tr. 157-59, 160-62.)
Plaintiff followed up with Dr. O’Keefe on July 1, 2010, in relation to a seizure
experienced on May 11, 2010. Plaintiff reported no new complaints. Review of systems
showed Plaintiff not to complain of any psychiatric symptoms, including anxious feelings
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and depression. Mental status examination showed Plaintiff to be alert and oriented to
person, place, and time; and to have normal memory, concentration, attention span,
auditory comprehension, fund of knowledge, affect, and judgment. (Tr. 192-94.)
Plaintiff visited Dr. Jay Liss, a psychiatrist, on December 1, 2010, and complained
of having many fears, depression, and anxiety. In a checklist format, Dr. Liss noted
Plaintiff to exhibit anxiety, phobias, obsessions, depression, distractibility, and
disorganization. It was noted that Plaintiff saw a counselor a few years prior. (Tr. 205.)
Plaintiff returned to Dr. Liss on January 19, 2011, and reported that he was a little
better with Xanax. Attention deficit disorder (ADD) and seasonal affective disorder were
discussed. Dr. Liss diagnosed Plaintiff with anxiety and ADD, and Xanax and Adderall
were prescribed. (Tr. 204.)
Plaintiff visited Dr. Liss on March 23, 2011, and reported that he was appealing
the denial of his application for disability benefits.

Obsessive compulsive disorder

(OCD) and ADD were discussed. Dr. Liss diagnosed Plaintiff with OCD and ADD and
assigned a Global Assessment of Functioning (GAF) score of 50.2

Plaintiff was

instructed to continue with Xanax, and Sertraline was prescribed. (Tr. 203.)
On June 29, 2011, Plaintiff visited Dr. Liss and reported that he could not sleep
and experienced cold sweats.

Plaintiff reported having racing thoughts and that he

experienced aura relating to his epilepsy. Plaintiff’s disability appeal was noted. Dr. Liss
A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score of 41-50 indicates serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).
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diagnosed Plaintiff with depression and assigned a GAF score of 50. Plaintiff was
instructed to continue with Xanax and to discontinue Zoloft. Lamictal and Temazepam
were prescribed. (Tr. 202.)
On August 22, 2011, Dr. Liss completed a Mental Medical Assessment of Ability
To Do Work-Related Activities in which he identified Plaintiff’s diagnoses to be anxiety,
depression, and attention deficit hyperactivity disorder (ADHD). Dr. Liss opined that
Plaintiff was disabled. Dr. Liss reported that Plaintiff’s highest GAF score within the past
year was 40/45.3 From a prepared list setting out thirty-two separate signs and symptoms
of mental disorders, Dr. Liss checked that Plaintiff exhibited twenty-seven of such signs
and symptoms, including poor memory, sleep disturbance, personality change, mood
disturbance, recurrent panic attacks, suicidal ideation or attempts, perceptual disturbance,
time or place disorientation, illogical thinking or loosening of associations, persistent
irrational fears, and pathological dependence. Dr. Liss reported Plaintiff to have had a
fair and stable response to treatment but that his prognosis was fair or poor because of his
chronic seizures, panic, anxiety, and depression.

Dr. Liss reported that Plaintiff

experienced limitations because of frequent auras, disorientation, poor cognitive skills,
agoraphobia since seventeen years of age, epileptic seizures, and poor concentration. Dr.
Liss opined that Plaintiff had poor or no ability to understand, remember, and carry out
“complete” jobs instructions; and fair ability to understand, remember, and carry out
A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as
work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work; child frequently beats up younger children, is
defiant at home, and is failing at school).
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3

simple and/or detailed, but not complex, job instructions. Dr. Liss opined that Plaintiff’s
epilepsy caused mental confusion resulting in Plaintiff having poor or no ability to
demonstrate reliability; and fair ability to maintain personal appearance, behave in an
emotionally stable manner, and relate predictably in social situations. Dr. Liss opined
that Plaintiff’s severe impairment, cognitive deficiencies, and interruptions caused by
seizures resulted in Plaintiff’s inability to hold attention such that he could not work a full
time job on a sustained basis. Dr. Liss opined that Plaintiff would be absent from work
more than three times a month because of his impairment or treatment therefor. Dr. Liss
opined that Plaintiff had marked restrictions of daily living; extreme difficulties in
maintaining social functioning; constant difficulties in maintaining concentration,
persistence, or pace; and experienced frequent episodes of decompensation of extended
duration. (Tr. 213-16.)
In an accompanying Mental RFC form, Dr. Liss reported that Plaintiff’s treatment
consists of medication and therapy and that such treatment maintained Plaintiff’s stability
and prevented him from being institutionalized. Dr. Liss opined that Plaintiff’s disabling
impairment has lasted or was expected to last one year and that his prognosis was poor.
Dr. Liss reported that Plaintiff’s impairment prevented him from standing and/or sitting
upright for six to eight hours because of fatigue, restlessness, and poor concentration. Dr.
Liss reported that Plaintiff’s impairment required him to lie down during the day because
of fatigue and avoidance. Dr. Liss reported that Plaintiff’s impairment prevented him
from lifting, pulling, and holding objects because of his fear of seizures. Dr. Liss opined
that Plaintiff’s seizure condition would prevent Plaintiff from travelling alone. Dr. Liss
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opined that Plaintiff’s disability was not likely to change. (Tr. 217-22.)
The ALJ's Decision
The ALJ found that Plaintiff met the insured status requirements of the Social
Security Act and would continue to meet them through March 31, 2014. The ALJ found
that Plaintiff had not engaged in substantial gainful activity since May 11, 2010, the
alleged onset date of disability. The ALJ found Plaintiff’s history of seizures, asthma,
and obesity to be severe impairments, but that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1. The ALJ found Plaintiff not to have a severe
mental impairment. The ALJ determined that Plaintiff had the RFC to perform light
work, except no climbing ropes, ladders, or scaffolds; only occasional climbing stairs and
ramps; only occasional balancing, stooping, kneeling, crouching, and crawling; must
avoid concentrated exposure to fumes, odors, dust, and gasses; and must avoid moderate
exposure to the hazards of unprotected heights and moving and dangerous machinery.
The ALJ found Plaintiff’s RFC not to preclude the performance of Plaintiff’s past
relevant work as a fast food assistant manager and fast food cashier. The ALJ thus found
Plaintiff able to perform such past relevant work and therefore not to be under a
disability. (Tr. 8-16.)
Discussion
To be eligible for DIB under the Social Security Act, Plaintiff must prove that he is
disabled.

Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v.

Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social
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Security Act defines disability as the "inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual
will be declared disabled "only if his physical or mental impairment or impairments are of
such severity that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a fivestep evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,
140-42 (1987). The Commissioner begins by deciding whether the claimant is engaged in
substantial gainful activity. If the claimant is working, disability benefits are denied.
Next, the Commissioner decides whether the claimant has a “severe” impairment or
combination of impairments, meaning that which significantly limits his ability to do
basic work activities.

If the claimant's impairment(s) is not severe, then he is not

disabled. The Commissioner then determines whether claimant's impairment(s) meets or
equals one of the impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively disabled.
At the fourth step, the Commissioner establishes whether the claimant can perform his
past relevant work. If so, the claimant is not disabled. Finally, the Commissioner
evaluates various factors to determine whether the claimant is capable of performing any
other work in the economy. If not, the claimant is declared disabled and becomes entitled
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to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable person
would find it adequate to support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147
(8th Cir. 2001). This “substantial evidence test,” however, is “more than a mere search of
the record for evidence supporting the Commissioner’s findings.” Coleman v. Astrue,
498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks and citation omitted).
“Substantial evidence on the record as a whole . . . requires a more scrutinizing analysis.”
Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The Plaintiff's vocational factors.

3.

The medical evidence from treating and consulting
physicians.

4.

The Plaintiff's subjective complaints relating to
exertional and non-exertional activities and
impairments.

5.

Any corroboration by third parties of the Plaintiff's
impairments.

6.

The testimony of vocational experts when required
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which is based upon a proper hypothetical question
which sets forth the claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992)
(quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The Court must also consider any evidence that fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d
1047, 1050 (8th Cir. 1999). However, even though two inconsistent conclusions may be
drawn from the evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole. Pearsall, 274 F.3d at 1217 (citing Young
v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the
record as a whole, we must affirm the administrative decision, even if the record could
also have supported an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252
(8th Cir. 1992) (internal quotation marks and citation omitted); accord Jones ex rel.
Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
Plaintiff claims here that the ALJ erred in the manner and method by which he
determined Plaintiff’s mental impairment not to be severe; and further, that the ALJ erred
in failing to consider the effects of his mental impairment in the RFC assessment.
At Step 2 of the evaluation process, the ALJ specifically determined Plaintiff’s
mental impairment not to be severe. (Tr. 10-12.) In making this determination, the ALJ
properly invoked 20 C.F.R. § 404.1520a(c)(3), which requires an ALJ to determine the
severity of a mental impairment by rating the degree of functional loss the impairment
causes a claimant to suffer in the areas of daily living; social functioning; concentration,
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persistence or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).
When we rate the degree of limitation in the first three
functional areas (activities of daily living; social functioning;
and concentration, persistence, or pace), we will use the
following five-point scale: None, mild, moderate, marked,
and extreme. When we rate the degree of limitation in the
fourth functional area (episodes of decompensation), we will
use the following four-point scale: None, one or two, three,
four or more. . . .
...
If we rate the degree of your limitation in the first three
functional areas as “none” or “mild” and “none” in the fourth
area, we will generally conclude that your impairment(s) is
not severe . . . .
20 C.F.R. § 404.1520a(c)(4)-(d)(1).
Here, the ALJ summarized the evidence of record and, after undergoing the
required analysis set out above, found Plaintiff’s mental impairment to result in only mild
limitations in Plaintiff’s daily activities; social functioning; and maintaining
concentration, persistence and pace; and to have resulted in no repeated episodes of
decompensation. The ALJ thus concluded that Plaintiff’s mental impairment was not
severe. (Tr. 11-12.) For the following reasons, substantial evidence on the record as a
whole supports this determination.
A review of the record in its entirety shows Plaintiff to have engaged in substantial
gainful activity through, at least, October 2009; and Plaintiff does not allege a disability
until May 11, 2010. During this time, Plaintiff was being treated for a seizure condition –
identified by Plaintiff as epilepsy – for which Plaintiff underwent periodic examinations
by his treating neurologist, Dr. O’Keefe.

During these examinations, Dr. O’Keefe

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conducted mental status evaluations that specifically addressed matters such as
concentration, attention, memory, and orientation, with such evaluations consistently
yielding normal results.

In July 2010, Dr. O’Keefe conducted another neurological

examination as a result of Plaintiff’s May 2010 seizure. The detailed mental status
evaluation conducted during this examination again yielded normal results. Additional
psychological factors were considered during this examination, however, and Dr.
O’Keefe noted Plaintiff not to report any symptoms relating to anxiety or depression.
Plaintiff first saw Dr. Liss in December 2010. As noted by the ALJ, Dr. Liss made
no detailed findings of severe symptoms in any of his treatment notes during Plaintiff’s
visits with him. Also, as noted by the ALJ, Dr. Liss’s diagnoses of Plaintiff changed from
visit to visit, ranging between depression, anxiety, OCD, ADD, and ADHD. In March
and June 2011, Dr. Liss assigned GAF scores of 50, indicating serious symptoms. In his
August 2011 Mental Medical Assessment, Dr. Liss opined that Plaintiff was disabled and
that his mental impairment caused limitations so significant and extreme that Plaintiff was
virtually unable to perform any work-related functions. Dr. Liss attributed many of such
limitations to Plaintiff’s poor concentration, memory, and cognitive abilities related to
Plaintiff’s seizure condition. Dr. Liss also noted that Plaintiff suffered from debilitating
psychiatric phobias since seventeen years of age.

Finally, Dr. Liss reported that

Plaintiff’s highest GAF score attained during the previous year was 40/45.
While the ALJ acknowledged Plaintiff’s treatment by Dr. Liss, including his
varying diagnoses, GAF scores, and prescribed medications, the ALJ properly determined
to accord little or no weight to Dr. Liss’s opinion rendered in his August 2011
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Assessment.
First, the ALJ found Dr. Liss’s opinion on the ultimate legal issue of disability to
be an issue reserved to the Commissioner and not a medical opinion entitled to deference.
The ALJ did not err in this determination. Ellis v. Barnhart, 392 F.3d 988, 994-95 (8th
Cir. 2005). In addition, the ALJ noted Dr. Liss’s opinion not to be supported by his own
treatment notes. While Dr. Liss opined in August 2011 that Plaintiff suffered limitations
so extreme that he was rendered virtually unable to engage in any work-related activity,
Dr. Liss’s treatment notes wholly fail to document such extreme limitations or
debilitating symptoms. An ALJ is permitted to discount a treating physician’s medical
source statement “where the limitations listed on the form ‘stand alone’ and were ‘never
mentioned in [the physician’s] numerous records of treatment’ nor supported by ‘any
objective testing or reasoning.’” Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005)
(quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)). See also Teague v. Astrue,
638 F.3d 611, 615 (8th Cir. 2011) (little evidentiary weight accorded to functional
limitations set out in MSS check-off form because previous treatment notes did not report
any significant limitations); Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010)
(inconsistency between treating physician’s treatment records and his functional
assessment provides good reason for ALJ to discount physician’s opinion). The ALJ
further noted Plaintiff’s self-reported activities of making his bed, taking out the trash,
and feeding his fish; shopping for clothing, contact lenses, and medical supplies; reading,
watching television, and chatting online; and self-reported abilities to follow written and
spoken instructions, spend time with others, and get along with authority figures (Tr. 11- 14 -

12, 135-42), and determined that evidence of such activities was inconsistent with a
finding that Plaintiff experienced more than slight restrictions in functioning and thus
with Dr. Liss’s restrictive GAF scores indicating serious symptoms (Tr. 14). Where GAF
ratings do not appear to reflect a claimant’s actual abilities as demonstrated by the
evidence, an ALJ does not err in according less weight to the opinions giving rise to such
ratings. See Hudson ex rel. Jones v. Barnhart, 345 F.3d 661, 666-67 (8th Cir. 2003).
To the extent the ALJ erroneously stated that Dr. Liss saw Plaintiff only every three to six
months – finding this to be “hardly the frequency to be expected if there was a severe
psychological condition” (Tr. 15)4 – and noted that Dr. Liss changed his diagnosis from
visit to visit, rendering suspect any opinion that Plaintiff suffered from a diagnosed
condition for at least twelve months,5 such statements do not lessen the ALJ’s other wellsupported reasons to discredit Dr. Liss’s August 2011 opinion. An arguable deficiency in
opinion-writing technique does not require an ALJ’s finding to be set aside when the
deficiency has no bearing on the outcome. Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir.
2008).
Plaintiff argues that Dr. Liss’s opinion regarding the effects of Plaintiff’s mental
impairment should be accorded significant weight inasmuch as Dr. Liss is a psychiatrist.

As noted by Plaintiff, Dr. Liss himself misstated the frequency of Plaintiff’s visits as “3-6
mos.” (Tr. 214.)
4

See 20 C.F.R. § 404.1522 (consideration given to durational requirement when claimant has
unrelated severe impairments or concurrent impairments). But see Hilkemeyer v. Barnhart,
380 F.3d 441, 445-46 (8th Cir. 2004) (ALJ did not err in rejecting inconsistent diagnoses of
mental disorders).
5

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While 20 C.F.R. § 404.1527(d)(5) 6 encourages the Commissioner to give greater weight
to the opinion of a specialist than to the opinion of a general physician, this rule does not
apply where the specialist’s opinion is controverted by substantial evidence or is
otherwise discredited.

Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000). As

discussed supra, the ALJ properly discredited Dr. Liss’s August 2011 opinion for
numerous well-supported reasons.

As such, he was not required to give it special

deference under § 404.1527(d)(5). This is especially true here where a significant portion
of Dr. Liss’s opinion rested on the belief that many of Plaintiff’s disabling symptoms
resulted from his seizure condition. The record contains no evidence, however, that the
treating neurologist charged with monitoring and managing Plaintiff’s seizure condition
observed any such symptoms. Indeed, the contrary is true. See Brosnahan v. Barnhart,
336 F.3d 671, 676 (8th Cir. 2003) (no error in discounting opinion of psychologist where
it is based partly on consideration of physical impairments).
While the Regulations require that more weight be given to the opinions of treating
physicians than other sources, and a treating physician's assessment of the nature and
severity of a claimant's impairments should be given controlling weight if the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the record, 20 C.F.R. §
404.1527(d)(2) ; Forehand v. Barnhart, 364 F.3d 984, 986 (8th Cir. 2004), a review of

Citations to 20 C.F.R. § 404.1527 are to the 2011 version of the Regulations, which were in
effect at the time the ALJ rendered the final decision in this cause. This Regulation’s most
recent amendment, effective March 26, 2012, reorganizes the subparagraphs relevant to this
discussion but does not otherwise change the substance therein.
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the ALJ’s decision shows the ALJ to have considered the relevant factors under §
404.1527(d) and (e) and to have provided good reasons for according little or no weight
to Dr. Liss’s opinion. Because such reasons are supported by substantial evidence on the
record as a whole, the ALJ’s determination as to what weight to accord Dr. Liss’s opinion
must be upheld.
The ALJ thoroughly summarized the remaining evidence of record relating to
Plaintiff’s daily activities; social interactions; and concentration, persistence, and pace
and found Plaintiff to suffer only mild limitations in such areas. Because substantial
evidence on the record as a whole supports these findings, the ALJ’s determination that
Plaintiff’s mental impairment did not rise to the level of a severe impairment must be
affirmed. See, e.g., Buckner v. Astrue, 646 F.3d 549, 557 (8th Cir. 2011) (ALJ’s finding
that claimant’s mental impairment was not severe was supported by evidence of several
normal psychological evaluations, visits to practitioner with no complaints of depression,
and symptoms attributed to physical impairment); Kirby v. Astrue, 500 F.3d 705, 709
(8th Cir. 2007) (ALJ’s finding that claimant’s mental impairment was not severe was
supported by medical evidence that Plaintiff exhibited normal judgment, recall,
comprehension, behavior, and calculation); Weikert, 977 F.2d at 1253 (mental
impairment not severe upon consideration of Plaintiff’s hobbies, chores, shopping,
maintaining residence, and maintaining friendships with no evidence of serious
dysfunction in social relationships); Jones v. Callahan, 122 F.3d 1148 (8th Cir. 1997).
Plaintiff contends however, that even if his mental impairment was properly found
not to be severe because of only mild limitations in all areas of functioning, the ALJ
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nevertheless was required to include these mild limitations in the RFC determination. In
the circumstances of this case, the ALJ was not required to include such limitations and
therefore did not err in his failure to do so.
When assessing a claimant’s RFC, an ALJ is required to consider all medically
determinable impairments, including non-severe impairments. See 20 C.F.R. § 404.1545.
As noted supra, the ALJ here discussed the effects of Plaintiff’s mental impairment when
he evaluated its severity. As such, it cannot be said that the ALJ did not consider the
effects of such impairment when he assessed Plaintiff’s RFC. With such consideration
and the ALJ’s lack of inclusion of mental limitations in the RFC, it is reasonable to
conclude that the ALJ implicitly found such limitations not to impose significant
restrictions on Plaintiff’s ability to perform gainful employment. See McCoy v. Astrue,
648 F.3d 605, 615 (8th Cir. 2011) (by identifying and considering evidence relating to
impairment and then not including alleged limitations caused thereby in detailed RFC,
conclusion can be made that ALJ implicitly found no significant limitations); Buckner,
646 F.3d at 561; Hilkemeyer, 380 F.3d at 447; Jackson v. Apfel, 162 F.3d 533, 538 (8th
Cir. 1998). Although the ALJ did not explicitly “list and reject” the possibility that
Plaintiff’s non-severe mental impairment affected his RFC, such a task is not required.
See McCoy, 648 F.3d at 615.
Conclusion
For the reasons set out above, the Commissioner’s decision that Plaintiff is not
disabled is supported by substantial evidence on the record as a whole. Inasmuch as
substantial evidence on the record as a whole supports the Commissioner’s decision, this
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Court may not reverse the decision merely because substantial evidence exists in the
record that would have supported a contrary outcome or because another court might
have reached a different conclusion. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001);
accord Buckner, 646 F.3d at 556. Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed
and this action is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is entered
this same date.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

Dated this 26th day of December, 2013.

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