Dixon v. Colvin

Filing 29

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 4/9/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PENNY DIXON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:13 CV 890 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the applications of plaintiff Penny
Dixon for disability insurance benefits and social security income benefits under Titles II
and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401, 1381. The parties have
consented to the exercise of plenary authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the decision of the
Administrative Law Judge is affirmed.

I. BACKGROUND
Plaintiff was born on January 26, 1962. (Tr. 141.) She filed her applications on
August 9, 2010. (Tr. 76, 134-43.) She alleged an onset date of June 10, 2010, and alleged
disability due to high blood pressure and stress. (Tr. 162.) At the administrative hearing,
she also alleged fibromyalgia, depression, post-traumatic stress disorder, back problems,
and other impairments. (Tr. 40.) Plaintiff’s applications were denied initially, and she
requested a hearing before an ALJ. (Tr. 79, 87.)
On June 27, 2012, following a hearing, the ALJ issued a partially favorable
decision. (Tr. 36-69, 22-30.) In the decision, the ALJ found that plaintiff had the severe

impairments of depression and fibromyalgia. (Tr. 24.) The ALJ found that plaintiff
retained the residual functional capacity (RFC) to perform a reduced range of sedentary
work. (Tr. 25.) After consulting a vocational expert (VE), the ALJ concluded that
plaintiff’s RFC would permit her to perform a significant number of jobs. (Tr. 29.)
However, once plaintiff reached the age of fifty, the Medical Vocational Guidelines
directed a finding of “disabled.”

Accordingly, the ALJ found that plaintiff became

disabled when she reached fifty years of age. (Tr. 30.)
On March 28, 2013, the Appeals Council denied plaintiff’s request for review.
Thus, the decision of the ALJ stands as the final decision of the Commissioner.

II. MEDICAL AND OTHER HISTORY
From September 15-17, 2010, plaintiff was hospitalized at Christian Northeast
Hospital under Abdul K. Muhammud, M.D., her primary care physician, for evaluation of
uncontrolled high blood pressure. She was a smoker of about twenty years. An MRI of
her brain revealed abnormalities possibly caused by hypertension.

Her blood pressure

improved, and she was discharged in stable condition. Her diagnoses at discharge were
uncontrolled hypertension; positive antinuclear antibody (ANA) test, which indicates
possible rheumatoid arthritis; history of an abnormal MRI; and left neck pain.

(Tr. 452-

56.)
On October 1, 2010, plaintiff saw Steven Baak, M.D., for follow up after her
hospitalization. Dr. Baak’s plan was to begin therapy for fibromyalgia and chronic pain,
as well as physical therapy. He also started her on an antidepressant and insomnia
medication. (Tr. 386.)
On October 18, 2010, Laura Tishey, Psy.D., a psychologist, performed a
consultative evaluation at the agency’s request. Plaintiff reported to Dr. Tishey that she
was very depressed. Dr. Tishey found plaintiff only mildly depressed. Dr. Tishey did not
observe any significant impairment in plaintiff’s concentration or memory and diagnosed
major depressive disorder and possible somatoform disorder, a mental disorder
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characterized by symptoms that suggest physical illness or injury. Dr. Tishey assigned
plaintiff a Global Assessment of Functioning (GAF) score of 65, indicating mild
symptoms. Dr. Tishey opined that plaintiff could understand and remember instructions,
sustain attention and concentration “fairly well,” interact socially, and adapt to the exam
environment. (Tr. 389-95.)
On November 22, 2010, Robert Cottone, Ph.D., a non-treating, non-examining
physician employed by the Missouri DDS, opined that plaintiff did not have a severe
mental impairment and had only mild functional limitations. (Tr. 398-408.)
On December 21, 2010, Dr. Muhammud completed a Physical Medical Source
Statement. He diagnosed uncontrolled hypertension, degenerative joint disease of the
cervical spine, fibromyalgia, and other impairments. He believed that plaintiff could sit,
stand, or walk for thirty minutes at a time, and could frequently lift five pounds at most.
He opined that plaintiff was limited in terms of balancing, occasionally required a cane,
would need to lie down or nap during the workday, and would be absent from work three
or more times per month. In response to a question that asked whether plaintiff’s pain
would interfere with her ability to perform simple tasks, he answered “yes.”

Dr.

Muhammud reported plaintiff’s onset date as May 24, 2010, her first office visit.

(Tr.

409-12.)
On June 14, 2011, Dinu Gangure, M.D., a psychiatrist, performed an initial
psychiatric evaluation. Dr. Gangure diagnosed recurrent major depressive disorder and
post-traumatic stress disorder (PTSD). He assigned a GAF score of 50, indicating serious
symptoms, and prescribed Zoloft, an anti-depressant.

(Tr. 425-27.) On July 19, 2011,

Dr. Gangure believed that plaintiff was “psychiatrically stable.”

(Tr. 429.) Subsequent

treatment notes described continued stability with continuing depression. (Tr. 432.)
Dr. Gangure completed a Mental Medical Source Statement on September 13,
2011. He rated plaintiff as markedly limited in eight of fifteen categories, including the
category of “making simple and rational decisions.” (Tr. 441–42.)

Dr. Gangure also

indicated that plaintiff could “apply commonsense understanding to carry out simple one-3-

or two-step instructions” for only four hours and interact appropriately with others for
zero to two hours during an eight-hour workday. Dr. Gangure also believed that plaintiff
would miss three or more days of work per month. (Tr. 441-43.)
Plaintiff continued to see Dr. Gangure. On September 20, 2011, Dr. Gangure noted
that plaintiff was feeling better. (Tr. 470.) On October 17, 2011, he increased her Zoloft
dosage after plaintiff reported that it was only partially effective. (Tr. 491-92.) Dr.
Gangure noted continued psychiatric stability in subsequent visits. (Tr. 544-52.)
On January 7, 2012, David Bradley, M.D., completed a consultative physical exam
at the agency’s request. Plaintiff reported that fibromyalgia caused pain throughout her
body, poor appetite, medication-related dizziness, and hyper-somnolence or drowsiness.
Upon examination, plaintiff did not have spine tenderness, muscular atrophy, or
significantly decreased range of motion. She had a normal gait but used a cane. Dr.
Bradley noted that plaintiff reported tenderness all over her body and winced when
touched, which “appear[ed] genuine.” (Tr. 496–97.) He believed that plaintiff’s back
pain was likely due to sciatica. He believed that many of plaintiff’s problems, including
oversedation and dizziness, appeared related to her medication, rather than her physical
diagnoses. He felt that while her fibromyalgia was difficult to assess, she did appear to
carry the diagnosis. Dr. Bradley opined that due to her fibromyalgia and unsteadiness
related to medications, plaintiff was likely to have limitations in lifting, squatting, and
standing for long periods of time. He thought that she was likely to have no limitations in
performing activities such as hearing, speaking, and traveling. (Tr. 494-97.)
Dr. Bradley also completed mental and physical assessment forms. He opined that
there were no mental limitations. On the physical assessment form, he indicated that
plaintiff could frequently lift up to twenty pounds. He believed that plaintiff could sit for
up to eight hours, stand for up to four hours, and walk for up two hours in an eight-hour
day. He did not think that plaintiff required a cane. He also indicated that plaintiff could
frequently reach, push, or pull. In terms of postural activities, he felt plaintiff could climb
occasionally, stoop frequently, and perform other activities continuously. (Tr. 500-07.)
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Three months later, on April 3, 2012, Dr. Bradley answered interrogatory questions
posed by plaintiff’s attorney. As part of the interrogatories, Dr. Bradley was instructed to
review new medical evidence as well as plaintiff’s nap logs. Dr. Bradley believed that the
medical evidence established a diagnosis of degenerative joint disease of the cervical
spine. (Tr. 516-24.)
Dr. Bradley also completed another physical assessment form. He indicated that
plaintiff could occasionally lift and carry up to twenty pounds. Dr. Bradley opined that
plaintiff could stand for two hours and walk for one hour during an eight-hour workday.
He felt that plaintiff could occasionally reach, push, or pull. Dr. Bradley indicated that
plaintiff could occasionally climb, stoop, kneel, crouch, and crawl, and could frequently
balance. He did not think she required the use of a cane. (Tr. 516-24.)

ALJ Hearing
The ALJ conducted a hearing on November 15, 2011. (Tr. 36-70.) Plaintiff
appeared and testified to the following. She cannot stay up long and is in a lot of pain.
She has difficulty exerting herself, wearing normal shoes, cooking, and doing chores. Her
adult daughter had moved in with her and was supporting her. She has crying spells. She
receives help from a mental health case manager who visits her home on a monthly basis.
She had been using a cane for over a year. (Tr. 53-63.)
Tracie Young, a vocational expert (VE), also testified at the hearing. She described
plaintiff’s past relevant work (PRW) as varying from light to heavy and either unskilled or
semi-skilled. (Tr. 67.) Following the hearing and after the ALJ obtained additional
evidence from consultative examiner Dr. Bradley, the ALJ provided written
interrogatories to the VE. (Tr. 233-36.) After testifying that all of plaintiff’s PRW was
either medium or heavy and unskilled, the VE was asked to assume a hypothetical of
plaintiff’s age, education, and work experience. The individual had the RFC to perform
medium work except that she could stand for only 4 hours and walk for only 2 hours in an
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eight-hour workday. She had no limitations with regard to sitting. She could frequently
reach in all directions with both upper extremities and push and pull with both upper
extremities. She could occasionally climb stairs and ramps but never climb ladders and
scaffolds. She could infrequently kneel and frequently operate a motor vehicle. She was
limited to performing semi-skilled or unskilled work. (Tr. 234.)
The VE responded that all of plaintiff’s past work was precluded under the
hypothetical because all of her past work exceeded the standing and walking limits. The
VE identified other jobs that the hypothetical individual could perform such as
telemarketer, sorter, and reception clerk, all at the sedentary level because of the standing
and walking limits. (Tr. 235.)

Decision of the ALJ
On June 27, 2012, the ALJ issued a partially favorable decision finding that
plaintiff was disabled as of January 25, 2012, when she reached age 50, but not as of June
9, 2010, her alleged onset date. (Tr. 22-30.) The ALJ concluded that with plaintiff’s
RFC, education, past work history, and exertional limitations, the Medical-Vocational
Rules (the “grids”) determined that she became disabled at age 50. (Tr. 28-29.)
The ALJ found that plaintiff had the severe impairments of depression and
fibromyalgia. (Tr. 24.) The ALJ determined plaintiff’s RFC, finding that plaintiff could
meet the basic demands of sedentary work with some added limitations. The ALJ found
that plaintiff could stand for up to four hours and walk for up to two hours in the workday.
The ALJ also found that plaintiff could frequently kneel, reach, push, pull, and operate
motor vehicles. In terms of mental limitations, the ALJ limited plaintiff to semi-skilled or
unskilled work. The ALJ found that plaintiff retained the RFC to perform a reduced range
of sedentary work. (Tr. 25-26.)
At step four, the ALJ found that plaintiff had been unable to perform past relevant
work since June 9, 2010. He based his finding on the VE’s testimony that plaintiff would

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be unable to return to any of her prior relevant work because it was done at the light
exertional level or higher. (Tr. 28.)
At step five, the ALJ determined, considering his RFC finding and plaintiff’s age,
that the framework of the Medical-Vocational Rules and specifically Rule 201.10 directed
a conclusion that plaintiff became disabled as of when she attained the age category of
“closely approaching advanced age” (age 50).

(Tr. 28-29.) The ALJ determined that

prior to age 50, plaintiff was not disabled because she was able to perform other work that
existed in significant numbers in the national economy such as telemarketer, sorter, and
reception clerk. (Tr. 29-30.).

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.

42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
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v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process); Pate-Fires,
564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of demonstrating
she is no longer able to return to her PRW.

Pate-Fires, 564 F.3d at 942.

If the

Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.

Id.; 20 C.F.R. §

404.1520(a)(4)(v).

V. DISCUSSION
Plaintiff argues that the ALJ erred in failing to include greater limitations in his
mental and physical RFC findings, specifically in light of plaintiff’s depression. She
argues that while the ALJ found that she had the severe impairment of depression, his
RFC included only exertional limitations and failed to include a mental functional
consequence of her depression or a limitation regarding concentration, persistence, or
pace. This court disagrees.
RFC is a medical question and the ALJ’s determination of RFC must be supported
by substantial evidence in the record. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.
2001); Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448,
451 (8th Cir. 2000). RFC is what a claimant can do despite her limitations, and it must be
determined on the basis of all relevant evidence, including medical records, physician’s
opinions, and a claimant’s description of her limitations. Donahoo v. Apfel, 241 F.3d
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1033, 1039 (8th Cir. 2001); 20 C.F.R. § 416.945(a). While the ALJ is not restricted to
medical evidence alone in evaluating RFC, the ALJ is required to consider at least some
evidence from a medical professional. Lauer, 245 F.3d at 704. An “RFC assessment must
include a narrative discussion describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g.,
daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (1996).
Here, the ALJ determined that plaintiff had the RFC to meet the basic demands of
sedentary work with some added limitations. The ALJ found that plaintiff could stand for
up to four hours and walk for up to two hours in the workday. The ALJ found that
plaintiff could frequently kneel, reach, push, pull, or operate motor vehicles. In terms of
mental limitations, the ALJ limited plaintiff to semi-skilled or unskilled work. (Tr. 26.)
In determining the effect of plaintiff’s depression, the ALJ gave weight to Dr.
Tishey’s consultative examination. The ALJ noted that Dr. Tishey found that plaintiff
could understand and remember instructions, sustain attention and concentration “fairly
well,” interact socially, and adapt to the exam environment. (Tr. 27, 394.) He assigned
plaintiff a GAF score of 65, indicating mild symptoms. (Tr. 27, 394.) Thus, aside from
indicating that plaintiff could sustain attention and concentration “fairly well,” Dr. Tishey
did not observe any mental limitations. (Tr. 394.) The ALJ accounted for plaintiff’s mild
attention and concentration deficit by limiting her to semi-skilled or unskilled work, which
does not involve complicated instructions. (Tr. 25–27.) See SSR 82-41, 1982 WL 31389,
at *7 (1982) (unskilled jobs are “the least complex types of work”; semi-skilled jobs are
“more complex than unskilled work and distinctly simpler than the more highly skilled
types of jobs”).
The ALJ gave little weight to the opinion of plaintiff’s treating psychiatrist, Dr.
Gangure. (Tr. 27.) Plaintiff asserts that Dr. Gangure’s opinion deserved greater weight.
However, the ALJ provided good reasons to question Dr. Gangure’s conclusions. In his
Mental MSS, Dr. Gangure believed that plaintiff was markedly limited in many areas,

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including simple decision-making. Dr. Gangure also indicated, in effect, that plaintiff
could complete simple instructions for only half the workday. (Tr. 441-43.)
The ALJ discounted Dr. Gangure’s opinion, noting that plaintiff had seen Dr.
Gangure only three times over a three-month period and because his opinion was not
supported by the record as a whole. (Tr. 27.) While Dr. Gangure’s limited relationship
with plaintiff did not mean that his conclusions were unreliable, it did mean that his
opinion was not entitled to the special deference reserved for treating sources. See Hacker
v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (treating physician's opinion is generally
given controlling weight, but is not inherently entitled to it); 20 C.F.R. § 404.1527(d)(2).
The ALJ considered Dr. Gangure more akin to a consultative examiner than to a treating
physician. Cf. Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004) (a physician’s
opinion was not entitled to controlling weight as a medical opinion of a treating source
because she only met with the claimant on three prior occasions). Thus, Dr. Gangure did
not have the type of longitudinal experience with plaintiff to justify giving his opinion
enhanced weight. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“[W]e give more
weight to opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective . . . .”). The ALJ also found that Dr.
Gangure’s opinion was not supported by the record evidence. He therefore deferred to
what he considered Dr. Tishey’s better-supported assessment which did not reveal any
significant mental limitations. (Tr. 27, 394.)
RFC refers to what the claimant can still do despite the physical and mental
limitations.

See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (defining RFC). It is not a

statement of education or work history.

Among other RFC limitations, the ALJ’s

hypothetical interrogatory questions to the VE were sufficient in that they included the
limitation to unskilled or semi-skilled work. (Tr. 234.) Plaintiff has not provided any law
from this Circuit indicating otherwise.

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With respect to physical limitations, the ALJ gave weight to Dr. Muhammud’s
December 2010 treating opinion, as well as Dr. Bradley’s January and April 2012
consultative assessments. (Tr. 27-28.) In terms of lifting restrictions, the ALJ’s RFC
finding was similar to Dr. Muhammud’s opinion. The ALJ limited plaintiff to sedentary
work, which involves lifting up to ten pounds, and occasionally carrying small items. See
20 C.F.R. §§ 404.1567(a), 416.967(a) (defining sedentary work).

Dr. Muhammud

opined that plaintiff could never lift ten pounds, but could frequently carry items that
weighed five pounds. (Tr. 410.) In terms of sitting, standing, or walking, the ALJ’s
findings were most consistent with Dr. Bradley’s January 2012 assessment. Consistent
with Dr. Bradley, the ALJ found that plaintiff could stand for four hours and walk for up
to two hours during the workday. The ALJ also found, consistent with Dr. Bradley’s
January 2012 opinion, that plaintiff could occasionally climb stairs, and frequently drive,
reach, push, or pull. (Tr. 26, 505–07.)
The ALJ credited those aspects of Dr. Muhammud’s opinion that were supported
by the record evidence. Where Dr. Bradley’s opinions were more consistent with the
record evidence than were Dr. Muhammud’s, the ALJ relied on those opinions instead.
To the extent plaintiff is arguing that the ALJ failed to account for some of the
limitations in Dr. Bradley’s amended April 2012 opinion, these arguments are unfounded.
For example, plaintiff asserts that Dr. Bradley believed that her medication or impairments
caused fatigue resulting in frequent napping. To the extent plaintiff is implying that Dr.
Bradley stated that she required naps during the day, the record evidence shows that Dr.
Bradley did not offer an opinion on this subject. (Tr. 517.) Dr. Bradley stated, “I merely
state that several of her medications are sedating and her napping may be consistent with
medication effect.” (Id.)
Plaintiff also argues that Dr. Bradley’s second opinion limited her to occasional
reaching, which was inconsistent with the ALJ’s finding that she could do frequent
reaching. However, the court questions whether plaintiff ever asserted that she had
reaching restrictions in that she did not assert any such restrictions in her function report.
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(Tr. 193.) Moreover, Dr. Muhammud’s assessment did not support reaching restrictions.
In fact, he believed that plaintiff could perform continuous overhead reaching. (Tr. 410.)
The ALJ therefore did not err in concluding that the record did not support more extensive
reaching restrictions.
This court concludes that substantial evidence, including the opinions of Drs.
Muhammud, Bradley, and Tishey, supports the ALJ’s RFC finding.

VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.

S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE

Signed on April 9, 2014

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