Gilliehan v. Astrue
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 03/26/2014. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case number 4:13cv0288 TCM
MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.
Colvin, the Acting Commissioner of Social Security (Commissioner), denying the applications
of Marty Gilliehan (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income (SSI) under
Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned United States
Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c).
Plaintiff applied for DIB and SSI in February 2010, alleging he was disabled as of July
1, 2004, because of low back pain, shortness of breath, depression, and arthritis in his knees
and shoulders. (R.1 at 124-34, 168.) His applications were denied initially and after a hearing
held in November 2011 before Administrative Law Judge (ALJ) Randolph E. Schum. (Id. at
References to "R." are to the administrative record filed by the Acting Commissioner with
8-21, 26-40, 48-58.) The Appeals Council denied Plaintiff's request for review, thereby
effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-5.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and John McGowan, a vocational expert, testified at
the administrative hearing.
Plaintiff testified that he completed two years of college. (Id. at 28.)
In 1996 and 1997, Plaintiff worked cleaning officers for Corporate Cleaning Services.
(Id. at 28-29.) He did the same type of work in 1998 for another company. (Id. at 29.) In
2000 and 2001, he worked stripping and waxing floors and cleaning and removing carpets for
Children's Hospital. (Id.) In 2001 and 2002, he worked as a janitor at the St. Louis Library.
(Id.) From 2002 to 2004, he worked cleaning offices for American Building Maintenance.
(Id. at 30.) He has not worked since 2004 because the pain in his knees and back prevented
him from doing the work in the allotted time at his last job, so he was let go. (Id. at 30, 35-36.)
Because of his knee problem, he has to sit after standing for twenty minutes. (Id. at 36.) Now,
he seldom gets out of his chair or bed. (Id.) Because of his pain, he does not even try to bend
Asked about the references in the record to Plaintiff using heroin and alcohol, Plaintiff
testified that he has "been clean for years." (Id. at 31.) He had unknowingly drunk alcohol in
September 2010 when he drank what he was erroneously told was nonalcoholic beer. (Id.)
He has been completely clean of heroin for a couple of years. (Id.) Before that, he had only
used once or twice. (Id.)
Plaintiff is "in the process" of getting treatment for his hepatitis C. (Id. at 32.)
Plaintiff testified that he uses a cane to help keep his balance. (Id.) A doctor did not
prescribe it for him. (Id.) He started using the cane before he was in a bus accident the past
April. (Id. at 33.)
Both knees bother him, but the left knee hurts worse. (Id.) He is also having problems
with his back. (Id.) He started going to the Hopewell Center the past July because he is
depressed and now has Medicaid. (Id. at 33-34.) Before that, he had been seen once at a free
psychiatric clinic. (Id. at 34.)
Dr. McGowan was asked by the ALJ to assume a hypothetical claimant of Plaintiff's age
(53 at the time of onset), education, and past work experience who can lift and carry twenty
pounds occasionally and ten pounds frequently and can sit, stand, and walk each for
approximately six hours in an eight-hour work day. (Id. at 37.) This claimant cannot work
with any direct contact with food products. (Id.) He can understand, remember, and carry out
at least simple instructions and non-detailed tasks. (Id.) Asked if the hypothetical claimant
can return to any past relevant work, Dr. McGowan replied that he can perform Plaintiff's past
janitorial work cleaning business offices. (Id.) The job, referred to as commercial cleaner, had
a Dictionary of Occupational Titles (DOT) number of 323.687-014, was light, and had a
specific vocational preparation level of 2. (Id.)
If the hypothetical claimant has the restrictions described by Mr. Smith2 in a Mental
Residual Functional Capacity Questionnaire, see pages 19 to 20, supra, there are no jobs he
can perform. (Id. at 38.)
If the first hypothetical claimant is rarely able to bend or stoop, cannot crouch or crawl,
and can only stand twenty minutes at one time, he cannot perform the job of a commercial
Dr. McGowan further stated that his testimony was consistent with the DOT and with
the Selected Characteristics of Occupations. (Id.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ includes forms Plaintiff completed as part of
the application process, documents generated pursuant to his applications, records from health
care providers, and assessments of his physical and mental functional capacities.
When applying for DIB and SSI, Plaintiff completed a Function Report. (Id. at 197204.) Asked to describe what he does during the day, he reported that most of his time is spent
trying to sleep or in bed trying to deal with the pain in his knees. (Id. at 197.) The meals he
prepares are primarily frozen dinners or sandwiches. (Id. at 199.) He cannot prepare more
complicated meals because they require too much standing. (Id.) He does not do any house
or yard work. (Id. at 200.) He goes outside at least once a day with his sister's dogs. (Id.) His
Erickson T. Smith, Ph.D., L.C.S.W., is a licensed clinical social worker; he is not a licensed
psychologist. See Mo. Div. of Prof'l Regis., Licensee Search – Active Licensee Only: Primary Source
Verification, https://renew.pr.mo.gov/licensee-search-results.asp?passview=1 (last visited Mar. 26,
2014). For ease of reference, the Court will use the title of "Mr." when referring to him.
sister takes him grocery shopping once a month. (Id.) His only hobbies are watching
television and reading. (Id. at 201.) Until 2004, he played sports. (Id.) His impairments
adversely affect his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and
complete tasks. (Id. at 202.) He cannot walk farther than 100 feet before having to sit down
for approximately five minutes. (Id.) He can follow written and spoken instructions very well.
(Id.) He also gets along very well with authority figures. (Id. at 203.) He handles stress well,
but has a hard time dealing with changes in routine. (Id.)
His sister completed a Function Report Adult – Third Party on Plaintiff's behalf. (Id.
at 177-84.) She reported that Plaintiff used to daily walk another sister's dogs, but no longer
does. (Id. at 178.) Her answers generally mirror his. (Id. at 177-84.)
Plaintiff disclosed on a Disability Report – Appeal form that he had developed heart
problems after filing his applications. (Id. at 218.)
On an earnings report, Plaintiff's highest earnings in the fifteen years before his alleged
disability onset date were $18,333,3 in 1996. (Id. at 148.) His lowest earnings were $1,591,
in 1995. (Id.) He had no earnings after 2004. (Id. at 148-49.)
The relevant medical records before the ALJ are summarized below in chronological
The earliest record is from February 2005, ten months after Plaintiff's alleged disability
onset date, when Plaintiff was seen at the Forest Park Hospital after he developed a large
abscess necrotizing in his left leg due to a self-injection of heroin. (Id. at 239-60.) Plaintiff
All amounts are rounded to the nearest dollar.
was described as having "a history of prolonged IV heroin abuse and heavy alcohol use." (Id.
at 241.) He had been routinely injecting heroin for the past seven years and reported that, at
least for the past month, "ha[d] been injecting heroin into his legs several times per day." (Id.)
He reported that he was employed by his sister as a janitorial contractor. (Id.) Indeed, it was
noted that he had checked himself out of the emergency room two days earlier because he had
to be at work in the morning.4 (Id.) He had "a long history of heavy alcohol use," drinking
approximately one beer and one to two pints of wine day. (Id.) Plaintiff was treated with
intravenous (IV) antibiotics and underwent an incision and drainage (I&D) of the left leg with
debridement of the necrotic skin down to the muscle. (Id. at 240, 243, 245.) He was
diagnosed with left leg abscess and cellulitis, alcohol abuse, and opioid abuse, and was
discharged the next day with prescriptions for Keflex (an antibiotic) and Darvocet.5. (Id. at
Plaintiff did not receive medical treatment again until x-rays were taken in June 2010,
four months after he filed his DIB and SSI applications, of his lumbar spine, revealing
spondylosis at L1-2; a possible old fracture at L1; hypertrophic spur formation; and grade I
degenerative spondylolisthesis6 at L4-5. (Id. at 277.)
The Court notes that Plaintiff has no reportable earnings after 2004.
Darvocet is a combination of acetaminophen and propoxyphene, a narcotic pain reliever. See
Darvocet, http://www.drugs.com/search.php?searchterm=darvocet (last visited Mar. 25, 2014). It
was withdrawn from the United States market in November 2010. Id.
Spondylolisthesis is graded according to the degree of slippage of the bones of the spine onto
the vertebra below.
Cleveland Clinic, Diseases & Conditions:
http://my.clevelandclinic.org/disorders/back_pain/hic_spondylolisthesis.aspx (last visited Mar. 25,
2014). Grade I is the lowest degree of slippage: 1 to 25 percent. Id.
In August, Plaintiff was seen as a walk-in patient by Teresita Cometa, M.D., with St.
Louis ConnectCare (SLCC), for treatment of general aches and pains. (Id. at 424-25, 428.)
Also, he became short of breath after walking a few feet and his chest hurt. (Id. at 424.) He
drank wine and beer every day and smoked one-half pack of cigarettes. (Id.) X-rays of his left
knee revealed moderate osteoarthritis of the femorotibial joint and advanced degenerative
osteoarthritis of the patellofemoral joint. (Id. at 428.) On examination, he had harsh breath
sounds. (Id. at 424.) Dr. Cometa opined he might have chronic obstructive pulmonary
disease. (Id.) He was encouraged to stop smoking and was to have lab work done. (Id. at
425.) He did. (Id. at 434-35.)
On September 1, Plaintiff returned to SLCC and was seen by Laila Hanna, M.D., for
complaints of occasional chest pain and tightness for the past year and of shortness of breath
when walking. (Id. at 421-23, 426-27, 431-33.) His current medication was tramadol (a pain
reliever). (Id. at 421.) On examination, he had no chest pain or discomfort, no palpitations,
and no shortness of breath. (Id. at 422.) He had a normal heart rate and rhythm. (Id.) Chest
x-rays were negative with the exception of showing minimal interstitial fibrosis at the right
lower lobe. (Id. at 426.) He was diagnosed with chest pain, elevated liver enzymes,
leukopenia (decreased white blood cells), and unspecified, continuous psychoactive substance
abuse. (Id. at 422-23.) He was to have a chest x-ray and an electrocardiogram (ECG). (Id.
at 423.) A hepatitis panel was positive for hepatitis C. (Id. at 431.) He was using heroin and
drinking wine and beer every day. (Id. at 421.)
Plaintiff returned to Dr. Hanna on September 20 due to the positive test for hepatitis
C and being positive for herpes. (Id. at 419-20.) Also, he continued to have left knee pain.
(Id. at 419.) He was to consult with a cardiologist, a gastroenterologist, and an orthopedic
surgeon. (Id. at 420.) His alcohol and drug use were as before. (Id. at 419.)
On October 4, Plaintiff consulted Alan Zajarias, M.D., a cardiologist. (Id. at 383-85.)
Plaintiff explained that he had been having increasing shortness of breath during the past two
months and left-sided substernal chest discomfort that increased with activity and decreased
with rest. (Id. at 383.) He also had "significant fatigue." (Id.) He used to be a heavy drinker,
but now only drank one beer on the weekends. (Id.) He also used to be a heroin user. (Id.)
An ECG was normal. (Id. at 284.) A stress ECG was to be obtained. (Id.) If it proved to be
abnormal, a cardiac catherterization was to be considered. (Id.) Plaintiff was to limit his
physical activity in the interim. (Id.)
Two days later, Plaintiff underwent the stress ECG, revealing no evidence of wall
motion abnormalities but evidence of significant ventricular ectopy and couplets. (Id. at 38991.)
On October 11, Plaintiff consulted a nurse practitioner, Shirley Campbell, N.P., with
SLCC for his complaints of knee, back, and shoulder pain that was a five on a ten-point scale
and for intermittent abdominal pain. (Id. at 317-19.) He had recently been diagnosed with
hepatitis C. (Id. at 317.) He had not used alcohol for a month and heroin for six months. (Id.)
He walked with a cane. (Id.) His current medications included tramadol. (Id.) He had
shortness of breath when walking short distances, but no chest pain or discomfort. (Id. at 318.)
He had no anxiety or depression. (Id.) With the exception of an abnormal spleen, his
examination results were normal. (Id.) Ms. Campbell diagnosed him with chronic hepatitis,
C virus, and alcohol abuse in remission. (Id.) He was instructed on the need to be alcohol free
for six months before treatment for hepatitis C could begin and was to return in four to six
weeks. (Id. at 319.)
Plaintiff underwent a cardiac catherization four days later, following which he was
diagnosed with clean coronary arteries and nonischemic cardiomyopathy and prescribed
metoprolol (a beta blocker). (Id. at 386-88.)
Plaintiff saw Ms. Campbell again in November. (Id. at 314-16.) He was to continue
to abstain from alcohol and return in three months. (Id. at 316.)
Plaintiff returned to Dr. Zajarias on January 5, 2011. (Id. at 381-82.) He reported that
he had been feeling well since starting metoprolol. (Id. at 381.) His ability to walk around his
house had improved. (Id.) He had stopped drinking and had decreased his cigarette smoking
to two to three a day. (Id.) He had no evidence of cyanosis, clubbing, or edema in his lower
extremities. (Id.) He was in no apparent distress and was alert and oriented to time, place, and
person. (Id.) He was diagnosed with nonischemic cardiomyopathy and was continued on his
current dose of metoprolol. (Id. at 382.) He was encouraged to stop smoking and to seek a
psychiatric consultation for his depression. (Id.)
Plaintiff saw David Kieffer, M.D., also with SLCC, on January 10 for complaints of left
knee pain. (Id. at 312-13.) He had tenderness on palpation and motion of the knee. (Id. at
312.) He was diagnosed with osteoarthritis of the left knee and given a corticosteroid injection
in that knee. (Id.) He was also given prescriptions for Naprosyn, a nonsteroidal antiinflammatory drug, and hydrocodone-acetaminophen. (Id. at 313.)
On January 31, Plaintiff saw Ms. Campbell for his low back and bilateral knee pain and
for his hepatitis. (Id. at 308-10.) He reported that the pain was a seven on a ten-point scale
and that he was feeling tired or poorly. (Id.) He had no chest pain and no anxiety, but was
trying to get an appointment with a psychiatrist for his depression and sleep problems. (Id. at
309.) Ms. Campbell noted that his depression needed to be under control before he could
undergo treatment for his hepatitis. (Id. at 310.)
When Plaintiff next saw Ms. Campbell, on March 7, he reported that his back, shoulder,
and knee pain was an eight, but he was not anxious or depressed. (Id. at 305-07.) In addition
to the hepatitis C, he was diagnosed with thrombocytopenia, a low platelet count, and advised
that he was at risk for internal bleeding. (Id. at 306.) He was to return in four to six weeks.
(Id. at 307.)
Plaintiff returned in four weeks. (Id. at 301-04.) His pain was then a ten. (Id. at 301.)
He was advised that his platelets remained high, a new treatment for his hepatitis would be
considered. (Id. at 303.)
Two days later, on April 6, Plaintiff was given another corticosteroid injection in his
left knee. (Id. at 300.)
On April 11, Plaintiff was seen by Dr. Hanna. (Id. at 416-18, 429-30.) He reported
feeling tired, depressed, hopeless and worthless, and apathetic. (Id. at 416.) He was having
difficulty falling asleep. (Id.) He had headaches and a lightheaded feeling. (Id.) He did not
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have chest pain or discomfort. (Id.) His gait, stance, and grooming were normal. (Id. at 417.)
His affect was flat; his mood was euthymic (neither depressed nor highly elevated). (Id.) Dr.
Hanna's diagnosis was severe recurrent major depression; Paxil was prescribed. (Id.) He was
referred to Hopewell Center to be seen by a psychiatrist. (Id. at 418.)
Complaining of pain and swelling in his left knee, Plaintiff was seen at the emergency
room at Barnes Jewish Hospital seven days later after the bus he was riding in the night before
was hit by a car. (Id. at 326-78.) He walked with a steady gait and moved all his extremities
well. (Id. at 329, 331.) He did not use an assistive device. (Id. at 330.) There was minimal
swelling in his left knee. (Id. at 330, 334.) There were left paraspinous muscle spasms and
tenderness in his lumbar spine with occasional shooting pain radiating down his left thigh. (Id.
at 334.) He was in no apparent distress and had a normal affect, mood, and behavior. (Id.)
His current medications included hydrocodone, metoprolol, and tramadol. (Id. at 333.) X-rays
of his lumbar spine revealed a mild compression deformity of the L1 vertebral body. (Id. at
345.) X-rays of his left knee revealed moderate patellofemoral compartment predominate
tricompartmental osteoarthritis with no underlying fracture. (Id.) Plaintiff was diagnosed with
a contusion of his left knee and lumbosacral, or low back, strain. (Id. at 346, 354.) He was
given prescriptions for tramadol and cyclobenzaprine (a muscle relaxant) and discharged
home. (Id. at 346, 357, 363.)
In May, Plaintiff saw Dr. Hanna for continuing left knee pain and for back pain
following a motor vehicle accident. (Id. at 321-23, 413-15.) He was trying to get an
appointment with the Hopewell Center to be seen for his depression. (Id. at 321.) He was
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drinking wine and beer every day and using heroin. (Id.) He was taking other people's
medications. (Id.) His heart rate and rhythm were normal, as were his gait and stance. (Id.
at 322-23.) He was diagnosed with benign essential hypertension and depression and given
a prescription for, and samples of, Lexapro (an antidepressant). (Id. at 323.) He was to return
to SLCC if his condition worsened or new symptoms arose. (Id.)
In June, Plaintiff received a third corticosteroid injection in his left knee. (Id. at 29798.) His diagnoses included, in addition to the previous one of osteoarthritis of the left knee,
spondylolisthesis without myelopathy. (Id. at 297, 298.)
Plaintiff underwent a psychological intake assessment by Mr. Smith, see note 2, supra,
at the Hopewell Center on July 13. (Id. at 401-05.) He reported that he was depressed because
his constant pain prevented him from taking care of himself. (Id. at 401.) He further reported
he had not used heroin since the 1980s. (Id. at 403.) He stopped drinking after his mother's
death and grieved that she died while he was daily drinking. (Id.) On examination, Plaintiff's
behavior was appropriate for the interview; his mood was stable, but his affect was depressed;
and his recent and remote memory were intact. (Id. at 404.) He was oriented to person, place,
and time. (Id.) He complained of pain after sitting for a long time. (Id.) He was diagnosed
with major depression, recurrent, and assessed as having a current and past Global Assessment
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of Functioning (GAF) of 40.7 (Id.) He was to be seen by Mr. Smith every two weeks. (Id. at
Two days later, Plaintiff returned to Ms. Campbell for a follow-up on his hepatitis C.
(Id. at 293-96.) On examination, he had pain in his back and legs. (Id. at 294.) He was not
anxious or depressed. (Id.) Her previous diagnoses were unchanged. (Id.) Ms. Campbell
noted that his low platelets were a concern as the hepatitis treatment might cause them to
further decrease. (Id. at 295.) The dates when he had stopped using alcohol and heroin had
not changed. (Id. at 293.)
Mr. Smith noted on July 29 that Plaintiff had missed his appointment for the day before
and had not rescheduled. (Id. at 399.) A letter was mailed to Plaintiff about the importance
of attending appointments. (Id.)
On August 1, Plaintiff saw Dr. Hanna, reporting that he had lost his grandson two days
earlier and was devastated by his death. (Id. at 410-12.) He was not sleeping well. (Id. at
410.) He complained of left knee pain and requested another referral for an injection. (Id.)
Also, his back hurt. (Id. at 411.) His gait and stance were normal. (Id.) His wine and heroin
use were as before. (Id. at 410.) His current medications included Lexapro and Paxil. (Id. at
"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. Text
Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the individual's
overall level of functioning,'" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir. 2003), and
consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621 F.3d 734,
737 (8th Cir. 2010). A GAF score between 31 and 40 is indicative of "[s]ome impairment in reality
testing or communication . . . OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood . . . ." DSM-IV-TR at 34 (emphasis omitted).
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410.) Dr. Hanna also prescribed Xanax and tramadol. (Id. at 412.) He was to return if his
conditions worsened or new symptoms developed. (Id.)
Plaintiff did see Mr. Smith on August 24, explaining that his grandson8 had died the
past week and, as a result, his fiancé had had a stroke. (Id. at 395-98.) She was recovering.
(Id. at 395.) On examination, Plaintiff was marked on the checklist as having a well-groomed
appearance, cooperative attitude, good insight and judgment, coherent speech, sad affect and
mood, and normal memory. (Id.) He did not have any hallucinations, delusions, or suicidal
or homicidal ideations. (Id.) He was not intoxicated. (Id.) The same day, Plaintiff saw
Matthew Lindquist, R.N., P.M.H.R.N. (Id. at 396-98.) Plaintiff reported he was unable to
leave the house, even to attend the grandson's funeral. (Id. at 396.) His sleep was poor,
although medication prescribed by Dr. Hanna was helping. (Id.) His appetite was poor; his
concentration was good; his energy was low. (Id.) He had not used heroin or alcohol for a
year. (Id.) His diagnosis was the same as given him by Mr. Smith in July. (Id. at 398.) He
was prescribed Cymbalta (an antidepressant) and trazodone (also an antidepressant). (Id.)
Plaintiff informed Dr. Hanna when he saw her on September 12 that his symptoms were
markedly improved on the Cymbalta. (Id. at 408-09.)
Plaintiff reported to Mr. Lindquist on September 29 that he was doing better and not
"'just laying around crying all the time.'" (Id. at 394.) His appetite and sleep were good. (Id.)
His behavior was appropriate; his speech was normal; his thought process was logical; his
The person is referred in the records of Mr. Lindquist as Plaintiff's step-grandson.
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judgment and insight were fair. (Id.) He was not using alcohol or illicit drugs. (Id.) His
prescriptions were renewed. (Id.)
Plaintiff again reported to Dr. Hanna when he saw her in October that the Cymbalta was
helping his depression. (Id. at 406-07.) He was not crying and was mentally better. (Id. at
406.) He continued, however, to have knee and back pain and had an orthopedic appointment
the next month. (Id.) His current medication was Lexapro. (Id.) Dr. Hanna noted that
Plaintiff was smiling more and was cheerful. (Id. at 407.) His gait and stance were abnormal;
he was limping. (Id.) He was diagnosed with osteoarthritis of the knee and depression. (Id.)
Also before the ALJ were assessments of Plaintiff's physical and mental residual
In May 2010, Plaintiff underwent a physical evaluation by Latanya C. TunstallRobinson, M.D. (Id. at 263-68.) Plaintiff reported that he had been diagnosed with arthritis
in April 2010, but had been having symptoms for many years. (Id. at 265.) The pain caused
him to stop working in 2004. (Id.) The tenderness in his knees, particularly in his right knee,
prevented him from kneeling. (Id.) He also had bilateral shoulder pain, worse on the left than
the right. (Id.) He did not take prescription medication for his pain, but often used his sister's
Tylenol #4 or street Vicodin for pain relief. (Id.) Plaintiff further reported that he had low
back pain for at least a year, preventing him from bending over. (Id. at 266.) He could only
walk 200 feet, and that was if he walked slowly and stopped frequently. (Id.) He used a golf
club to help him walk. (Id.) When he was active, he was short of breath. (Id.) He had some
swelling in his right ankle during the winter; the swelling was accompanied by severe pain.
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(Id.) Because of his pain and his shortness of breath, he lived in his sister's basement. (Id.)
He has been depressed since his brother died two years earlier from liver cirrhosis. (Id.) He
used to drink alcohol daily, but stopped four months earlier because he has no money and has
too much difficulty climbing up and down the basement stairs. (Id. at 267.) His last IV use
of heroin was two years earlier. (Id.) Once or twice a month, he snorts it. (Id.) On
examination, Plaintiff was able to ambulate without use of an assistive device. (Id.) He
"appeared with a somewhat depressed mood" and was occasionally tearful. (Id.) He had very
poor hygiene. (Id.) He had a protuberant abdomen and enlarged liver. (Id.) He had
"numerous healed abscessed and needle track appearing scarring changes of the upper
extremities and lower extremities." (Id. at 268.) He had no tenderness to palpation of his
knees. (Id.) He was alert and oriented to time, place, and person. (Id.) "He had significant
limitation of range of motion." (Id.) He could flex at the waist to 50 degrees. (Id. at 268,
264.) He could flex his left shoulder to 95 degrees and his right to 90; 150 degrees was a full
flexion. (Id. at 263.) He could abduct his left shoulder to 35 degrees and his right to 75. (Id.)
He could flex/extend his right knee to 120 degrees and his left to 130; full flexion-extension
was 150 degrees. (Id.) Straight leg raises were positive at 35 degrees on the right and 25
degrees on the left in a supine position. (Id. at 264.) There were no muscle tremors or
atrophy. (Id. at 268.) Dr. Tunstall-Robinson opined that the pain in Plaintiff's knees,
shoulders, and back was due to advanced osteoarthritis, not arthritis. (Id.) She also opined
that the probability he has liver cirrhosis was "very strong." (Id.) His depression was beyond
her area of expertise. (Id.)
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In June 2010, Plaintiff's depression was evaluated by Paul W. Rexroat, Ph.D. (Id. at
271-74.) Plaintiff reported that he had been convicted in 1980 of felony stealing, received
probation, and convicted of petty stealing three times. (Id. at 271.) He explained that "'[w]hen
[his] mother died [he] went down the wrong road.'" (Id.) Plaintiff reported that he uses heroin
intermittently, with the last use being two months earlier. (Id. at 272.) He drinks a can of beer
and a pint of wine three or four days a week. (Id.) On examination, he "was adequately
dressed and groomed." (Id.) He had a normal range of emotional responsiveness and a normal
affect, energy level, gait, and posture. (Id.) He was alert and cooperative. (Id.) His speech
was normal, coherent, and relevant. (Id.) He had no evidence of a thought disorder. (Id.) He
reported having occasional mood swings and being depressed for the last couple of years. (Id.)
He stayed in bed all day, had a poor appetite, was easily irritated, cried a lot, had low selfesteem, and did not sleep well. (Id.) He had no paranoia or hallucinations. (Id.) He reported
having a poor appetite and also a normal appetite. (Id.) On examination, his remote memory
was fair. (Id.) As to his recent memory, he could recall what he had had for dinner the night
before. (Id.) He appeared to be functioning in the low average range of intelligence. (Id. at
273.) "[H]e described significant symptoms of major depression, heroin abuse and alcohol
He could understand and remember simple instructions, could sustain
concentration and persistence with simple tasks, and could adapt to his environment. (Id.) He
had moderate limitations in his ability to interact socially. (Id.) He did not work. (Id.) Dr.
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Rexroat's diagnosis was major depression, recurrent, moderate; alcohol abuse; and heroin
abuse. (Id. at 274.) Plaintiff's current GAF was 49. 9 (Id.)
In July 2010, a Physical Residual Functional Capacity Assessment (PRFCA) of Plaintiff
was completed by John Herberger, a single decision maker.10 (Id. at 41-47.) The primary, and
only, diagnosis was degenerative spondylolisthesis. (Id. at 41.) This impairment resulted in
exertional limitations of Plaintiff being able to occasionally lift or carry fifty pounds;
frequently lift or carry twenty-five pounds; and sit, stand, or walk for approximately six hours
in an eight-hour workday. (Id. at 42.) His ability to push and pull was otherwise unlimited.
(Id.) He had postural limitations of never climbing ladders, ropes, and scaffolds and only
occasionally kneeling, balancing, stooping, crouching, crawling, and climbing ramps and
stairs. (Id. at 43.) He had no manipulative, visual, communicative, or environmental
limitations. (Id. at 43-44.)
The same month, a Psychiatric Review Technique form was completed by Robert
Cottone, Ph.D. (Id. at 278-89.) Plaintiff was reported to have an affective disorder, i.e., major
depression disorder, and substance addition disorder, i.e., alcohol and heroin abuse. (Id. at
278, 281, 284.) These disorders resulted in mild restrictions in activities of daily living,
moderate difficulties in maintaining social functioning, and moderate difficulties in
A GAF score between 41 and 50 is indicative of "[s]erious 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)." DSM-IV-TR at 34 (emphasis omitted).
See 20 C.F.R. §§ 404.906, 416.1406 (defining role of single decision-maker under proposed
modifications to disability determination procedures). See also Shackleford v. Astrue, 2012 WL
918864, *3 n.3 (E.D. Mo. Mar. 19, 2012) ("Single decision-makers are disability examiners
authorized to adjudicate cases without mandatory concurrence by a physician.") (citation omitted).
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maintaining concentration, persistence, or pace. (Id. at 286.) They also caused one or two
episodes of decompensation of extended duration. (Id.)
On a Mental Residual Functional Capacity Assessment form, Dr. Cottone rated Plaintiff
as being markedly limited in one of the three abilities in the area of understanding and
memory, i.e., understanding and remembering detailed instructions, and not significantly
limited in the other two. (Id. at 290.) In the area of sustained concentration and persistence,
Plaintiff was markedly limited in one of the eight listed abilities, i.e., the ability to carry out
detailed instructions; moderately limited in three abilities, i.e., the ability to maintain attention
and concentration for extended periods; the ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; and the ability to
complete a normal workday and workweek without interruptions from psychologically based
symptoms, and was not significantly limited in the other four. (Id. at 290-91.) He was
moderately limited in four of the five abilities in the area of social interaction and was not
significantly limited in one. (Id. at 291.) And, Plaintiff was moderately limited in one of the
four abilities in the area of adaptation, i.e., his ability to set realistic goals or make plans
independently of others, and not significantly limited in the other three, including in his ability
to respond appropriately to changes in the work setting. (Id.)
In October 2011, Mr. Smith completed a Mental Residual Functional Capacity
Questionnaire on Plaintiff's behalf. (Id. at 436-40.) His diagnosis was major depressive
disorder, recurrent (DSM-IV code 296.3). (Id. at 436.) He rated Plaintiff's GAF, current and
past, as 40. (Id.) The symptoms of Plaintiff's depression were decreased energy; blunt, flat,
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or inappropriate affect; feelings of guilt or worthlessness; mood disturbance; persistent
disturbances of mood or affect; apprehensive expectation; recurrent obsessions or
compulsions; persistent irrational fear of a specific object, activity, or situation; and sleep
disturbance. (Id. at 437.) Because of his disorder, Plaintiff was unable to meet competitive
standards in eleven of the sixteen listed mental abilities and aptitudes needed to do unskilled
work and was seriously limited, but not precluded, in the remaining five. (Id. at 438.) Mr.
Smith, did not, as requested, explain the limitations. (Id.) In three of the four listed mental
abilities and aptitudes needed to do semiskilled and skilled work, Plaintiff was unable to meet
competitive standards in three and was seriously limited, but not precluded, in one. (Id. at
439.) Again, Mr. Smith did not explain the limitations. (Id.) In the five listed mental abilities
and activities needed to do particular types of jobs, Plaintiff was unable to meet competitive
standards in three and was seriously limited, but not precluded, in two. (Id.) Mr. Smith
explained that the limitations were due to Plaintiff's constant thoughts of his mother's death.
(Id.) He anticipated that Plaintiff would miss more than four days of work a month due to his
disorder. (Id. at 440.) The disorder was expected to last more than twelve months. (Id.)
Another reason why Plaintiff would have difficulty working a regular job was the constant pain
in his joints and back. (Id.)
The ALJ's Decision
The ALJ first found that Plaintiff met the insured status requirements of the Act through
December 31, 2009, and has not engaged in substantial gainful activity since his alleged onset
date of July 1, 2004. (Id. at 13.) The ALJ next found that Plaintiff has severe impairments of
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degenerative changes of his left knee and lumbar spine; depression; polysubstance abuse is
reported remission; and hepatitis C.
He had non-severe impairments of
thrombocytopenia and history of tachycardia. (Id.) He did not have an impairment or
combination thereof that met or medically equaled an impairment of listing-level severity. (Id.)
Specifically, his degenerative disc disease did not include a history of nerve root compression
accompanied by limitation of motion of the spine, motor loss, or sensory or reflex loss.11 (Id.)
There was also no evidence of spinal stenosis resulting in, inter alia, an inability to ambulate
effectively. (Id. at 14.) His mental impairments resulted in only mild restrictions in his
activities of daily living, mild difficulties in social functioning, and moderate difficulties in
regard to concentration, persistence, or pace. (Id.)
With his impairments, Plaintiff has the exertional residual functional capacity (RFC)
to perform light work and understand, remember, and carry out at least simple instructions and
non-detailed tasks. (Id. at 15.) When making this determination, the ALJ reviewed the
medical records. (Id. at 16-19.) The ALJ noted that Plaintiff's allegations of left knee and
lumbar spine pain was supported by imaging studies, but also noted that a doctor did not
attribute any severe limitations to that pain, the injections had provided relief, and surgery was
never recommended. (Id. at 17.) A report by Plaintiff in May 2010 of being depressed for the
past two years was followed the next month by a finding that his mood and affect were normal.
(Id.) Plaintiff did not mention depression during his clinic visits until the May 2011
The ALJ also said it was not accompanied by positive straight leg raises. The findings of
Dr. Tunstall-Robinson, however, are that there were positive straight leg raises.
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assessment. (Id. at 18.) After a few sessions at the Hopewell Center, he reported a marked
improvement with medication. (Id.) His depression had improved with treatment, counseling,
and medication. (Id.) Detailing Plaintiff's varying accounts of his alcohol and heroin use and
cessation, the ALJ found his polysubstance abuse to be closely associated with the depression.
(Id.) The ALJ further found that there was no evidence that the history of such abuse
prevented Plaintiff from working. (Id. at 19.) Nor was there any evidence that Plaintiff's
hepatitis C had resulted in any significant physical abnormalities. (Id.)
In addition to the inconsistencies in the medical records, the ALJ considered other
factors that he found detracted from Plaintiff's credibility. (Id. at 19-20.) For instance, during
the telephone interview when Plaintiff was applying for DIB and SSI, there were no obvious
limitations noted. (Id. at 19.) His work record was poor. (Id.) He gave inconsistent accounts
of when he had stopped using heroin and alcohol. (Id.) He admitted getting street Vicodin for
pain relief. (Id.) He had a distant history of a felony stealing conviction. (Id. at 20.) And,
there was no evidence of treatment prior to his date last insured or when he filed his
applications. (Id.) Although Plaintiff appeared to blame a lack of insurance for his lack of
psychiatric care, he admitted having gone once to a free clinic for such care. (Id.) And, his
demeanor at the hearing was unremarkable; his thoughts were organized. (Id.) He smiled
during the hearing and responded to the questions. (Id.) The opinion of Mr. Smith was not
accepted as it (a) was not by an acceptable medical source; (b) was based on only one session;
(c) "include[d] the effects of recent, if not current, daily alcohol use," and (d) appeared to be
based on Plaintiff's unquestioned allegations. (Id.)
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Next, the ALJ concluded that Plaintiff could return to his past relevant work as a
commercial cleaner. (Id.) He was not, therefore, disabled within the meaning of the Act. (Id.
Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is "unable
to engage in any substantial activity by reason of any medically determinable physical or
mental impairment," which must last for a continuous period of at least twelve months or be
expected to result in death. 42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A). Not only the impairment,
but the inability to work caused by the impairment must last, or be expected to last, not less
than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002). Additionally, the
impairment suffered must be "of such severity that [the claimant] 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, regardless of
whether . . . a specific job vacancy exists for him, or whether he would be hired if he applied
for work." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
"The Commissioner has established a five-step 'sequential evaluation process' for
determining whether an individual is disabled.'" Phillips v. Colvin, 721 F.3d 623, 625 (8th
Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§§ 404.1520(a) and § 416.920 (a)). "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). First, the claimant cannot be presently engaged in "substantial gainful activity." See
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20 C.F.R. §§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must
have a severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c). A"severe impairment"
is "any impairment or combination of impairments which significantly limits [claimant's]
physical or mental ability to do basic work activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. If the
claimant meets these requirements, he is presumed to be disabled and is entitled to benefits.
Bowen v. City of New York, 476 U.S. 467, 471 (1986); Warren v. Shalala, 29 F.3d 1287,
1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). "[A]n RFC determination must be based on a claimant's ability 'to perform the requisite
physical acts day in and day out, in the sometimes competitive and stressful conditions in
which real people work in the real world.'" McCoy v. Astrue, 648 F.3d 605, 617 (8th Cir.
2011) (quoting Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)). Moreover, "'a
claimant's RFC [is] based on all relevant evidence, including the medical records, observations
of treating physicians and others, and an individual's own description of his limitations.'"
Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord Partee v. Astrue, 638
F.3d 860, 865 (8th Cir. 2011).
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"'Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires the ALJ consider
"' the claimant's daily activities;  the duration, frequency and intensity of the pain; 
precipitating and aggravating factors;  dosage, effectiveness and side effects of medication;
 functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). "'The credibility of a claimant's subjective testimony is primarily for the ALJ to
decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After considering the
Polaski 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. Ford
v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008); Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.
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), 416.920(e). "An ALJ may find the claimant
able to perform past relevant work if the claimant retains the ability to perform the functional
requirements of the job as he actually performed it or as generally required by employers in
the national economy." Samons v. Astrue, 497 F.3d 813, 821 (8th Cir. 2007). "At this step
the ALJ may use a VE to assist him in making that decision by providing expert advice."
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006). The burden at step four remains with
- 25 -
the claimant to prove his RFC and establish he cannot return to his past relevant work. Moore,
572 F.3d at 523.
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 the claimant maintains
the RFC to perform a significant number of jobs within the national economy. Pate-Fires v.
Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258 F.3d 820, 824 (8th Cir.
If the claimant is prevented by his impairment from doing any other work, the ALJ will
find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above is
conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001).
"'Substantial evidence is relevant evidence that a reasonable mind would accept as adequate
to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the Court
must consider evidence that supports the decision and evidence that fairly detracts from that
decision. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The Court
may not reverse that decision merely because substantial evidence would also support an
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opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730.
Plaintiff argues that the ALJ erred when accepting the assessment of Dr. Cottone of his
mental residual functional capacity and rejecting that of Mr. Smith's. This error led to a further
error in not including the concrete consequences of his impairments in his hypothetical
question to the VE.
The ALJ determined that Plaintiff's mental impairments resulted in mild restrictions in
his activities of daily living, mild difficulties in social functioning, and moderate difficulties
in concentration, persistence, or pace. This determination varied from that of Dr. Cottone in
that Dr. Cottone found Plaintiff's difficulties in social functioning to be moderate. As noted
by Plaintiff, Dr. Cottone also found him to be moderately limited in his abilities to interact
appropriately with the general public, to accept instructions, to respond appropriately to
criticism from supervisors, and to get along with co-workers and peers without distracting
them. (R. at 290-91.) The ALJ further determined that Plaintiff had the residual mental
functional capacity to understand, remember, and carry out at least simple instructions and
non-detailed tasks. This determination differed from that of Mr. Smith's, who assessed Plaintiff
as being generally unable to meet competitive standards in any work-related mental abilities
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Plaintiff argues there is a lack of a necessary explanation for Dr. Cottone's findings. On
the other hand, Mr. Smith's findings are supported by the evidence of his treatment of Plaintiff
and were improperly rejected.
There is nothing in the record or the ALJ's decision to suggest that he unquestionably
incorporated Dr. Cottone's findings. Instead, the ALJ detailed the evidence, including the
medical records and hearing testimony, of Plaintiff's depression. That evidence reveals that
Plaintiff alleged depression as a disabling impairment when applying for DIB and SSI in
February 2010. There is no evidence of him seeking treatment for such before his insured
status ended on December 31, 2009. Indeed, the first evidence of a complaint of depression
is a reference in the May 2010 consultative notes of Dr. Tunstall-Robinson. An evaluation of
his depression followed the next month by Dr. Rexroat – four months before the treatment
records of Ms. Campbell referred to Plaintiff not being anxious or depressed, six months before
any reference in the medical records suggesting that Plaintiff should seek psychiatric care for
depression, and thirteen months before he actually did so. Additionally, when Plaintiff was
being evaluated by Dr. Rexroat he was intermittently using heroin and consistently drinking
alcohol, but was still found to be able to understand and remember simple instructions and to
sustain concentration and persistence with simple tasks – limitations consistent with the ALJ's
RFC determination. Thus, whatever deficiencies or strengths there might be in the support of
Dr. Cottone's findings, the ALJ's determination was not fatally infected. See Martise v.
Astrue, 641 F.3 909, 927 (8th Cir. 2011) (noting in similar case in which the ALJ "had
exhaustively reviewed the record medical evidence and made factual findings regarding this
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evidence," that there was "no indication that the ALJ felt unable to make the assessment he
did") (internal quotations omitted).
Plaintiff vigorously argues that the ALJ erred in discounting Mr. Smith's assessment.
Specifically, he contends that the ALJ ignored Social Security Ruling 06-3p, ignored the
regulations governing how medical opinion evidence should be evaluated, ignored evidence
of Mr. Smith's sessions with Plaintiff, and erroneously failed to explain the inconsistencies
between Mr. Smith's assessment and treatment notes.
It is undisputed that Mr. Smith, a licensed clinical social worker, is not an acceptable
medical source, see 20 C.F.R. §§ 404.1513(a), 416.913(a), but is an "other source" under 20
C.F.R. §§ 404.1513(d), 416.913(d). See Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007).
Under Social Security Ruling 06-3p, the factors for considering the opinion of an "other
medical source" include:
• How long the source has known and how frequently the source has seen the
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support an
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the
individual's impairment(s); and
• Any other factors that tend to support or refute the opinion.
Id. at 889.
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In the instant case, consideration of all but one of these factors militates against giving
Mr. Smith's assessment any weight.
First, Mr. Smith first met Plaintiff on July 13, 2011, when conducting an intake
assessment. He next, and last saw, him on August 24, 2011, although he was to see Plaintiff
every two weeks.12 Two months later, he issued his assessment.
Second, the assessment is not consistent with the other evidence. In addition to the
inconsistencies detailed by the Commissioner between Mr. Smith's treatment notes and his
assessment, see Commissioner's Brief at 10,13 in the interval between Plaintiff's last visit to Mr.
Smith and the assessment, he had told Dr. Hanna twice and Mr. Lindquist once that he was
doing better after having started to take Cymbalta. Indeed, at his last medical visit before the
assessment, he was reported by Dr. Hanna to be cheerful and smiling more. See Davidson, 578
F.3d at 846 ("Impairments that are controllable or amenable to treatment do not support a
finding of disability."); accord Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001).
Third and fourth, Mr. Smith presented no relevant evidence and no explanation to
support his assessment. For two of the three categories of work-related activities and abilities
he did not, as the form requested, explain any limitations. The explanation he gave for the
The Court notes that Plaintiff cites eight pages in the record in support of his representation
that there is evidence of Mr. Smith's visits with Plaintiff. (Pl.'s Br. at 18.) Six of those eight relate
to the July intake assessment; one of the eight is of Plaintiff's August visit to Mr. Smith; and the eighth
is Mr. Smith's notation that Plaintiff missed his appointment.
The Court notes that "[i]t is permissible for an ALJ to discount an opinion of a treating
physician that is inconsistent with the physician's clinical treatment notes." Davidson v. Astrue, 578
F.3d 838, 843 (8th Cir. 2009); accord Clevenger v. S.S.A., 567 F.3d 971, 975 (8th Cir. 2009);
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007).
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limitations in the third category, the death of Plaintiff's mother, was not given by Plaintiff as
the reason for his depression when last seen by Mr. Smith. Moreover, the notes of Mr. Smith's
one treatment session with Plaintiff are primarily in a checklist format. See Anderson v.
Astrue, 696 F.3d 790, 794 (8th Cir. 2012) ("[A] conclusory checkbox form has little
evidentiary value when it cites no medical evidence, and provides little or no elaboration.")
(internal quotations omitted); see also Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011)
(finding that an ALJ may properly reject treating physician's opinion consisting only of
Fifth, Mr. Smith's area of expertise, clinical social work, is arguably related to Plaintiff's
impairment, but does not outweigh the detracting considerations set forth above.
Sixth, another factor that refutes Mr. Smith's opinion is its clear reliance on Plaintiff's
description of his limitations. See Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012)
(ALJ properly gave treating physician's opinion non-controlling weight when, among other
things, that opinion was largely based on claimant's subjective complaints); McCoy, 648 F.3d
at 617 (holding ALJ did not err in discrediting mental RFC assessment of neurologist that was
based, "at least in part, on [claimant's] self-reported symptoms" which had been "found to be
less than credible"); Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (finding that ALJ was
entitled to discount treating physician's statement as to claimant's limitations because such
conclusion was based primarily on claimant's subjective complaints and not on objective
medical evidence). The ALJ found, however, that Plaintiff was not credible. "'If an ALJ
expressly discredits the claimant's testimony and gives good reason for doing so, [the Court]
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will normally defer to the ALJ's credibility determination.'" Boettcher v. Astrue, 652 F.3d
860, 865 (8th Cir. 2011) (quoting Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008));
accord Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011). Plaintiff does not challenge this
Plaintiff does challenge the ALJ's consideration of his heroin and alcohol use, arguing
that the ALJ failed to comply with the Commissioner's regulations, see 20 C.F.R. §§ 404.1535,
416.935, governing such consideration. (Pl.'s Br. at 19.) As in the instant case, the ALJ in
Fastner v. Barnhart, 324 F.3d 981, 986 (8th Cir. 2003), considered the claimant's substance
abuse to be an impairment, but concluded that he was not disabled. The Eighth Circuit found
that a decision under the regulations whether substance abuse is a contributing factor material
to a finding of disability "is only necessary if the ALJ has found that the sum of that
individual's impairments would otherwise amount to a finding of disability." Id. The ALJ
having found no disability, any decision about whether the abuse was a contributing factor was
Because the ALJ erroneously failed to give Mr. Smith's assessment the proper weight,
he also failed, Plaintiff argues, to include the concrete consequences of his impairments in the
hypothetical question he posed to the VE. "'[T]he ALJ's hypothetical question [to the VE] must
include those requirements that the ALJ finds are substantially supported by the record as a
whole.'" Buckner, 646 F.3d at 561 (quoting Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)). "'[A]n ALJ may omit alleged impairments from a hypothetical question posed to a [VE]
when [t]here is no medical evidence that these conditions impose any restrictions on [the
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claimant's] functional capabilities.'" Id. (quoting Owen v. Astrue, 551 F.3d 792, 801-02 (8th
Cir. 2008)) (third and fourth alterations in original). Because the ALJ's decision about Mr.
Smith's assessment is supported by substantial evidence on the record as a whole, there is no
error in the hypothetical questions.
"Ultimately, the claimant bears the burden of proving disability and providing medical
evidence as to the existence and severity of an impairment." Kamann v. Colvin, 721 F.3d 945,
950 (8th Cir. 2013). For the reasons set forth above, Plaintiff has failed to carry this burden.
Considering all the evidence in the record, including the evidence before the Appeals
Council, the Court finds that there is substantial evidence to support the ALJ's decision. "If
substantial evidence supports the ALJ's decision, [the Court] [should] not reverse the decision
merely because substantial evidence would have also supported a contrary outcome, or because
[the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and
this case is DISMISSED.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.
/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of March, 2014.
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